06-0319-cv(L); 06-0321-CV (CON); 06-0348-CV (CON); 06-0397-CV (CON); 06-0398-CV

(CON); 06-0436-CV (CON); 06-0442-CV (CON); 06-0453-CV (CON); 06-0458-CV (CON); 06-0461-CV (CON); 06-0473-CV (CON); 06-0477-CV

(CON); 06-0487-CV (CON); 06-0657-CV (CON); 06-0674-CV (CON); 06-0693-CV (CON); 06-0700-CV (CON); 06-0702-CV (CON)

United States Court of Appeals for the

Second Circuit

IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001

_______________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF DEFENDANT-APPELLEE HIS ROYAL HIGHNESS PRINCE TURKI AL-FAISAL BIN ABDULAZIZ AL-SAUD

MICHAEL K. KELLOGG MARK C. HANSEN COLIN S. STRETCH KELLY P. DUNBAR KELLOGG, HUBER, HANSEN, TODD,

EVANS & FIGEL, P.L.L.C. Sumner Square 1615 M Street, N.W., Suite 400 Washington, DC 20036 (202) 326-7900 Attorneys for Defendant-Appellee

His Royal Highness Prince Turki Al-Faisal Bin Abdulaziz Al-Saud

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................... iii

PRELIMINARY STATEMENT ...............................................................................1

JURISDICTIONAL STATEMENT ..........................................................................3

ISSUES PRESENTED...............................................................................................4

STATEMENT OF THE CASE..................................................................................5

A. Plaintiffs’ Allegations ...........................................................................5

B. Prince Turki’s Declaration ....................................................................8

C. Decisions of the District Courts ..........................................................12

SUMMARY OF ARGUMENT ...............................................................................16

STANDARD OF REVIEW .....................................................................................19

ARGUMENT ...........................................................................................................20

I. THE FSIA APPLIES TO INDIVIDUALS ACTING IN AN OFFICIAL CAPACITY ................................................................................20

II. PLAINTIFFS HAVE NOT CARRIED THEIR BURDEN OF SHOWING THAT AN EXCEPTION TO IMMUNITY APPLIES .............27

A. Plaintiffs’ Claims Must Be Brought, If At All, Under Section 1605(a)(7) ............................................................................................28

B. Plaintiffs’ Theories of Causation Do Not Fall Within the Scope of Section 1605(a)(5) ..........................................................................29

C. Prince Turki’s Alleged Conduct Is Discretionary and Therefore Falls Outside the Scope of Section 1605(a)(5) ...................................40

ii

D. Section 1605(a)(5) Is Inapplicable Because the Entire Tort Did Not Occur in the United States............................................................44

III. THE DISTRICT COURT PROPERLY HELD THAT IT LACKS PERSONAL JURISDICTION OVER PRINCE TURKI..............................46

A. Plaintiffs Have Not Properly Alleged That Prince Turki Took Any Acts in His Personal Capacity .....................................................47

B. The District Court Properly Held That Plaintiffs’ Allegations Were Insufficient to Support Personal Jurisdiction ............................50

CONCLUSION........................................................................................................57

iii

TABLE OF AUTHORITIES

Page CASES

Allianz Ins. Co. v. Lerner, 416 F.3d 109 (2d Cir. 2005)..........................................46

Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989).................................................................................................20, 30, 45

Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528 (5th Cir. 1992)...................38, 39

Asahi Metal Indus. Co. v. Superior Ct., 480 U.S. 102 (1987) ...........................51, 52

Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517 (D.C. Cir. 1984) .......................................................................................30, 45

Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779 (2d Cir. 1999)....................................................................................46, 55

Bergman v. De Sieyes, 170 F.2d 360 (2d Cir. 1948) .................................................3

Bersch v. Drexel Firestone, Inc., 519 F.2d 974 (2d Cir. 1975) ...............................52

Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th Cir. 2002) ........................33, 34

Bryks v. Canadian Broad. Corp., 906 F. Supp. 204 (S.D.N.Y. 1995) ....................21

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)...........................................51

Burnett v. Al Baraka Inv. & Dev. Corp., 292 F. Supp. 2d 9 (D.D.C. 2003) ...........................................................................................12, 13, 30, 31,

40, 44, 53, 57

Byrd v. Corporacion Forestal y Industrial De Olancho S.A., 182 F.3d 380 (5th Cir. 1999) ........................................................................................21

Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189 (S.D.N.Y. 1996) .............................21

Cabiri v. Government of Republic of Ghana, 165 F.3d 193 (2d Cir. 1999) ..............................................................................................................45

iv

Central States, S.E. & S.W. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934 (7th Cir. 2000)...................................................56

Chuidan v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990) ..................21, 22, 23, 25, 26

City of New York v. Permanent Mission of India to the United Nations, 446 F.3d 365 (2d Cir. 2006), petition for cert. filed, 75 U.S.L.W. 3061 (U.S. July 25, 2006) (No. 06-134) ..................................36

Daliberti v. Republic of Iraq, 97 F. Supp. 2d 38 (D.D.C. 2000) .............................54

Edelman v. Jordan, 415 U.S. 651 (1974) ................................................................25

El-Fadl v. Central Bank of Jordan, 75 F.3d 668 (D.C. Cir. 1996)....................21, 40

Enahoro v. Abukakar, 408 F.3d 877 (7th Cir. 2005), cert. denied, 126 S. Ct. 1341 (2006).............................................................................26, 27

Evans v. Petroleos Mexicanos (PEMEX), No. 05-20434, 2006 WL 952265 (5th Cir. Apr. 18, 2006) ....................................................................40

First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d 172 (2d Cir. 1998) .....................................................................................19, 20, 37, 38

First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763 (2d Cir. 1994) ........................................................................................................32, 33

Garb v. Republic of Poland, 440 F.3d 579 (2d Cir. 2006) ................................20, 24

Grady v. Affiliated Cent., Inc., 130 F.3d 553 (2d Cir. 1997)...................................19

Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) .................................31, 33, 35

In re Agent Orange Prod. Liab. Litig., 818 F.2d 194 (2d Cir. 1987) ......................41

In re B-727 Aircraft Serial No. 21010, 272 F.3d 264 (5th Cir. 2001).....................37

In re Republic of Philippines, 309 F.3d 1143 (9th Cir. 2002) .................................39

In re Sokolowski, 205 F.3d 532 (2d Cir. 2000)........................................................46

v

International Shoe Co. v. Washington, 326 U.S. 310 (1945) ..................................50

Jazini v. Nissan Motor Co., Ltd, 148 F.3d 181 (2d Cir. 1998) ....................52, 53, 56

Jungquist v. Sheik Sultoan Bin Khalifa Al Nahyan, 115 F.3d 1020 (D.C. Cir. 1997) .......................................................................................25, 55

Keller v. Central Bank of Nigeria, 277 F.3d 811 (6th Cir. 2002)............................21

Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841 (5th Cir. 2000) ................38

Kentucky v. Graham, 473 U.S. 159 (1985)..............................................................26

Kitchen v. Upshaw, 286 F.3d 179 (4th Cir. 2002) ...................................................26

Kline v. Kaneko, 685 F. Supp. 386 (S.D.N.Y. 1988)...............................................21

Klinghoffer v. S.N.C. Achille-Lauro Ed Altri-Gestione Motonave Achille Laurao in Administrazione Straordinaria, 937 F.2d 44 (2d Cir. 1991).................................................................................................50

Kulko v. Superior Ct., 436 U.S. 84 (1978)...............................................................50

Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972) .......................................................................................................52

Lehigh Valley Indus., Inc. v. Birenbaum, 527 F.2d 87 (2d Cir. 1975) ....................55

Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980) ..............................43

Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 184 F. Supp. 2d 277 (S.D.N.Y. 2001) ................................................................21, 38

Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989) ........................................43

MacArthur Area Citizens Ass’n v. Republic of Peru, 809 F.2d 918 (D.C. Cir. 1987) .................................................................................12, 27, 30

Macharia v. United States, 334 F.3d 61 (D.C. Cir. 2003).......................................41

Massachusetts School of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026 (3d Cir. 1997) ........................................................................49

vi

Monell v. Department of Social Servs., 436 U.S. 658 (1978)..................................26

Morris v. Khadr, 415 F. Supp. 2d 1323 (D. Utah 2006) .........................................54

Mwani v. bin Laden, 417 F.3d 1 (D.C. Cir. 2005)...................................................54

National Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) ...................23

Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984) .............44, 45

Phoenix Consultin, Inc. v. Republic of Angola, 216 F.3d 36 (D.C. Cir. 2000) ..............................................................................................................37

Pittman v. Grayson, 149 F.3d 111 (2d Cir. 1998) ...................................................31

Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002) .............................................................................................29

Prince Turki Bin Abdulaziz v. Metropolitan Dade County, 741 F.2d 1328 (11th Cir. 1984) ......................................................................................3

Pugh v. Socialist People’s Libyan Arab Jamahiriya, 290 F. Supp. 2d 54 (D.D.C. 2003) ...........................................................................................54

Rein v. Socialist People’s Libyan Arab Jamahiriya, 995 F. Supp. 325 (E.D.N.Y. 1998), aff’d in part, dismissed in part, 162 F.3d 748 (2d Cir. 1998).................................................................................................54

Rios v. Marshall, 530 F. Supp. 351 (S.D.N.Y. 1981)..............................................21

Robinson v. Government of Malaysia, 269 F.3d 133 (2d Cir. 2001)..........19, 27, 33, 34, 36, 37, 39

Saudi Arabia v. Nelson, 507 U.S. 349 (1993)..........................................................20

Shapiro v. Republic of Bolivia, 930 F.2d 1013 (2d Cir. 1991) ................................46

Southway v. Central Bank of Nigeria, 328 F.3d 1267 (10th Cir. 2003) ..................37

Stauffacher v. Bennett, 969 F.2d 455 (7th Cir. 1992)........................................54, 55

vii

Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004), cert. denied, 126 S. Ct. 2020 (2006)...................................................................................25

Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300 (2d Cir. 1981) .................................................................................46

Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148 (D.C. Cir. 1994) ..............................................................................................................24

United States v. Gaubert, 499 U.S. 315 (1991) .......................................................41

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984) ......................................................................41

Velasco v. Government of Indonesia, 370 F.3d 392 (4th Cir. 2004) .................21, 26

Virtual Countries, Inc. v. Republic of South Africa, 300 F.3d 230 (2d Cir. 2002) .................................................................................................20, 36

CONSTITUTION & STATUTUES

U.S. Const. amend. XI .............................................................................................25

28 U.S.C. § 1291........................................................................................................4

28 U.S.C. §§ 1602 et seq. ..........................................................................................1

28 U.S.C. § 1603(a) .................................................................................................20

28 U.S.C. § 1603(b) .................................................................................................21

28 U.S.C. § 1604......................................................................................................20

28 U.S.C. §§ 1604-1607 ..........................................................................................20

28 U.S.C. § 1605(a) ...............................................................................................2, 3

28 U.S.C. § 1605(a)(2).......................................................................................14, 28

28 U.S.C. § 1605(a)(5)(A) ...........................................................................13, 40, 43

viii

28 U.S.C. § 1605(a)(7)...................................................................................2, 14, 28

28 U.S.C. § 1605(a)(7)(A) .......................................................................................28

OTHER AUTHORITIES

Winston Churchill, The Second World War, Vol. 1: The Gathering Storm (Houghton Mifflin Co. 1948)..............................................................42

H.R. Rep. No. 94-1487 (1967), reprinted in 1976 U.S.C.C.A.N. 6604 ...........20, 24, 30, 36

Herodotus, The Histories .........................................................................................43

Richard H. Immerman, The CIA in Guatemala: The Foreign Policy of Intervention (Univ. of Tex. Press 1982)........................................................42

Restatement (Second) of Foreign Relations Law (1965) ........................................23

Kermit Roosevelt, Countercoup: The Struggle for Control of Iran (McGraw Hill 1979) ......................................................................................42

The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (July 2004) ..........................................................................................................8, 11

Thucydides, History of the Peloponnesian War ......................................................43

PRELIMINARY STATEMENT

His Royal Highness Prince Turki Al-Faisal bin Abdulaziz Al-Saud (“Prince

Turki”) has been named as a defendant in these actions for conduct allegedly taken

in an official capacity during the years he was Director of Saudi Arabia’s

Department of General Intelligence (“DGI”). In essence, plaintiffs contend that he

caused the terrorist attacks of September 11, 2001, by brokering an alleged deal

with the Taliban (which, at that time, was the de facto government of Afghanistan)

not to seek extradition of Osama bin Laden in exchange for bin Laden’s agreement

not to direct terrorist attacks toward Saudi Arabia, and by otherwise providing

material support and resources to Al-Qaeda.

These claims are completely fabricated. Uncontroverted evidence in the

district court, including Prince Turki’s sworn declaration, make clear that Prince

Turki has spent much of his official career combating terrorism in general and Al-

Qaeda in particular, and that in doing so he has earned the enmity of Osama bin

Laden towards both himself and his country. Under the Foreign Sovereign

Immunities Act (“FSIA”), 28 U.S.C. §§ 1602 et seq., plaintiffs had to come

forward with evidence to rebut Prince Turki’s sworn statement and to establish that

the conduct they allege fits within one of the FSIA’s exceptions to immunity.

Plaintiffs were repeatedly and openly challenged to present such evidence and just

as repeatedly declined. Instead, plaintiffs have said they want to use discovery to

2

see if they can find some evidence implicating Prince Turki in the attacks of

September 11. Having named Prince Turki as a defendant without any proper

basis for doing so, plaintiffs have suggested, incredibly, that “if it turns out at the

end of the case [Prince Turki] didn’t do it, [he] didn’t know and [he was] innocent,

well, we can shake [his] hand[] and say, sorry, we put you through the trouble.”

Tr. of Mot. Hr’g, Burnett v. Al Baraka Inv. Corp., Docket No. CA 02-1616 JR, at

77:12-16 (D.D.C. Oct. 17, 2003) (A-1735).

The FSIA doesn’t work that way. The actions Prince Turki undertook in his

official capacity are the acts of the Kingdom of Saudi Arabia, and those acts, no

less than those attributed to the Kingdom itself, are subject to sovereign immunity.

In the absence of evidence establishing that the conduct they allege fits within one

of the FSIA’s exceptions to immunity, plaintiffs cannot proceed against Prince

Turki.

Plaintiffs have utterly failed to carry that burden. Indeed, the exception on

which plaintiffs primarily rely — the noncommercial torts exception in 28 U.S.C.

§ 1605(a)(5) — is not even available when, as here, plaintiffs’ claim is that the

defendant provided material support to terrorism, a matter comprehensively

addressed in the “state sponsor of terrorism” exception in § 1605(a)(7). Beyond

that, plaintiffs’ tort theory — that Prince Turki made a deal with the Taliban to

protect Saudi Arabia from terrorism, which in turn deflected Al-Qaeda toward the

3

United States, which in turn resulted in the attacks of September 11 — is far too

attenuated to support a claim under § 1605(a)(5), and it, in any event, involves

discretionary decision-making that is protected from suit under established law.

The district court, in short, properly concluded that Prince Turki cannot be forced

to answer in U.S. courts for actions in his official capacity that, in plaintiffs’ own

telling, were taken in furtherance of the foreign relations and national security

interests of the Kingdom of Saudi Arabia. This Court should affirm.1

JURISDICTIONAL STATEMENT

The district court ruled that it lacked subject matter jurisdiction over claims

brought by several sets of plaintiffs against Prince Turki and the Kingdom of Saudi

Arabia and also that it lacked personal jurisdiction over claims concerning alleged

acts taken by Prince Turki in his personal capacity. See In re Terrorist Attacks on

September 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005) (Casey, J.) (“In re

1 Prince Turki was until recently the Ambassador of Saudi Arabia to the

United Kingdom. In the district court, Prince Turki accordingly urged the dismissal of the suits against him under principles of diplomatic immunity. Plaintiffs objected, arguing that such immunity applied only to suits brought in the receiving state of the diplomat. But see Bergman v. De Sieyes, 170 F.2d 360, 362-63 (2d Cir. 1948) (L. Hand, J.). The district court did not decide this issue and it is not presented here. But Prince Turki is now the Ambassador of Saudi Arabia to the United States. Given Prince Turki’s current status, in the unlikely event this matter is remanded to the district court, the district court will be required to dismiss the suit against Prince Turki. See Prince Turki Bin Abdulaziz v. Metropolitan Dade County, 741 F.2d 1328, 1329-32 (11th Cir. 1984) (diplomatic status granted to a different Prince Turki after commencement of suit required dismissal based on diplomatic immunity).

4

Terrorist Attacks I”) (SPA-1-62).2 On May 5, 2005, pursuant to stipulation, the

district court dismissed similar claims against Prince Turki and Saudi Arabia

brought by other plaintiffs. See In re Terrorist Attacks on September 11, 2001,

No. 03 MDL 1570 (RCC) (S.D.N.Y. May 5, 2005) (“In re Terrorist Attacks II”)

(SPA-63-66). On December 16, 2005, the court entered a final judgment in all

actions relating to Prince Turki and Saudi Arabia under Federal Rule of Civil

Procedure 54(b). See SPA-102. This Court has appellate jurisdiction under 28

U.S.C. § 1291.

ISSUES PRESENTED

1. Whether the district court properly held that the FSIA requires the

dismissal of claims against a foreign official for acts taken in an official capacity,

when no exception to immunity under the FSIA is applicable.

2. Whether the district court properly held that plaintiffs have not

carried their burden of establishing a prima facie case of personal jurisdiction

based on conclusory and unsubstantiated allegations.

2 Prince Turki was originally named as a defendant in the following actions:

Ashton, Barrera, Burnett 9849, Burnett 5737, Cantor, Continental, Euro Brokers, Federal Insurance, NY Marine, Salvo, Tremsky, and World Trade Center Properties. The court’s dismissal in In re Terrorist Attacks I was with respect to Burnett, Ashton, Tremsky, Salvo, Barrera, and Federal Insurance. See In re Terrorist Attacks I, 349 F. Supp. 2d at 837. The subsequent stipulated dismissal was with respect to all remaining cases.

5

STATEMENT OF THE CASE

A. Plaintiffs’ Allegations

Although plaintiffs’ complaints vary in length, they share the common

feature that only a handful of paragraphs relate to Prince Turki. The district court

considered the allegations in the Ashton, Burnett, and Federal Insurance

complaints. Because the other plaintiffs that named Prince Turki as a defendant

subsequently stipulated that the allegations in their complaints are encompassed

within the allegations in the Ashton, Burnett, and Federal Insurance complaints,

we summarize only those allegations here.

Plaintiffs allege that “Prince Turki was head of Saudi Arabia’s Department

of General Intelligence (Istakhbarat) from 1977 until 2001.” Ashton, Third Am.

Compl. ¶ 256, No. 02-6977 (S.D.N.Y. filed Sept. 5, 2003) (“Ashton Compl.”)

(A-1604); see Burnett, Third Am. Compl. ¶ 343, No. 02-1616 (D.D.C. filed Nov.

22, 2002) (“Burnett Compl.”) (A-1233); Federal Insurance, First Am. Compl.

¶ 445 (filed Mar. 10, 2004) (“FAC”) (A-2010). Plaintiffs assert that, in that

capacity, “Prince Turki met personally with [Osama] bin Laden at least five times

while in Pakistan and Afghanistan during the mid-eighties to mid-nineties. Prince

Turki also had meetings with the Taliban in 1998 and 1999.” Ashton Compl. ¶ 257

(A-1604); see Burnett Compl. ¶ 344 (A-1233).

6

Plaintiffs claim that Prince Turki first met bin Laden at the Royal Embassy

of Saudi Arabia in Islamabad, Pakistan, during the Soviet Union’s occupation of

Afghanistan in the 1980s. Ashton Compl. ¶ 254 (A-1604). Plaintiffs further allege

that, around the time Iraq invaded Kuwait in 1990, bin Laden met with H.R.H.

Prince Sultan bin Abdulaziz Al-Saud (“Prince Sultan”), then and now the Minister

of Defense of Saudi Arabia, and “offered the engineering equipment available

from his family’s construction company and suggested bolstering Saudi forces

with Saudi militants who [he] was willing to recruit,” id. ¶ 253 (A-1603-04), and

that this offer was also made to Prince Turki, id. ¶ 254 (A-1604). Plaintiffs allege

that Prince Turki had an “ongoing relationship” with bin Laden and helped to

arrange a meeting between Iraq’s Ambassador to Turkey and bin Laden in 1998,

all while Prince Turki was Director of the DGI. Id. ¶¶ 254, 262 (A-1604-06).

Plaintiffs also allege that Prince Turki attended a meeting in July 1998 at

which he is alleged to have promised oil and financial assistance to the Taliban

(not to Al-Qaeda) in Afghanistan and Pakistan. Id. ¶ 261 (A-1605). Plaintiffs

claim that, “[a]fter the meeting, 400 new pick-up trucks arrived in Kandahar for the

Taliban, still bearing Dubai license plates.” Id. Plaintiffs also state that, as part of

an agreement supposedly reached at the meeting, “the Saudis would make sure that

no demands for the extradition of terrorist individuals [were made], such as [for]

7

Osama bin Laden,…[nor permit] the closure of terrorist facilities and camps.” Id.;

see Burnett Compl. ¶ 348 (A-1234).

Some plaintiffs also claim, without elaboration and without drawing any

connection to the attacks of September 11, that Prince Turki was “the facilitator”

of “the transfer of funds from wealthy Saudis directly to al Qaeda and [Osama] bin

Laden in Afghanistan.” Ashton Compl. ¶ 259 (A-1605); see FAC ¶¶ 66, 446, 448

(A-1925-29, 2010). These plaintiffs further allege that the DGI “served as a

facilitator of Osama bin Laden’s network of charities, foundations, and other

funding sources.” Ashton Compl. ¶ 263 (A-1606); see Burnett Compl. ¶ 350

(A-1234).

Plaintiffs also allege that an alleged Al-Qaeda financier named Zouaydi “had

close financial ties” with Prince Turki, but nowhere do they specify what those

“ties” were. Ashton Compl. ¶ 241 (A-1601); see Burnett Compl. ¶ 345 (A-1233).

Similarly, the Federal Insurance complaint mentions two persons — Nabil

Kosaibati and Omar Al-Bayoumi — who were allegedly associated with the DGI

and Al-Qaeda during the period Prince Turki was Director of the DGI and who are

alleged to have had some connection to one or more of the September 11 hijackers.

FAC ¶ 449 (A-2010).

Finally, the Federal Insurance complaint alone alleges that Prince Turki

“made significant personal contributions to Saudi-based charities that he knew to

8

be sponsors of Al Qaida’s global operations.” Id. ¶ 451 (A-2011) (emphasis

added).

B. Prince Turki’s Declaration

In support of his claim to sovereign immunity, Prince Turki submitted a

sworn declaration directly rebutting plaintiffs’ allegations. Decl. of H.R.H. Prince

Turki Al-Faisal Bin Abdulaziz Al-Saud (May 2, 2003) (“Decl.”) (A-2151).

In that declaration, Prince Turki expressly and unequivocally denied that he

“encouraged, funded, or provided any form of material or other assistance — direct

or indirect — to enable Osama bin Laden and his Al-Qaeda network of terrorists to

perpetrate these attacks.” Decl. ¶ 4 (A-2152). Prince Turki’s statement is

corroborated by the findings of the congressionally chartered National Commission

on Terrorist Attacks Upon the United States (“9/11 Commission”), which, after an

exhaustive study, found that: “Saudi Arabia has long been considered the primary

source of al Qaeda funding, but we have found no evidence that the Saudi

government as an institution or senior Saudi officials individually funded the

organization.” The 9/11 Commission Report: Final Report of the National

Commission on Terrorist Attacks Upon the United States 171 (July 2004)

(emphasis added) (“9/11 Report”).3

3 Prince Turki has publicly condemned bin Laden and the terrorist attacks:

“For me, [September 11] was an especially calamitous event, as I had devoted all of my working life to combating such crimes. It also brought back the pain and

9

The declaration also establishes that all of the acts allegedly taken by Prince

Turki would have been in an official capacity. The declaration states that Prince

Turki served as Director of the DGI from September 1977 until August 2001.

Decl. ¶ 5 (A-2152-53). The DGI carries out functions similar, in many respects, to

those of the U.S. Central Intelligence Agency (“CIA”), including collecting and

analyzing foreign intelligence and carrying out foreign operations. Id. The

declaration establishes that the activities of the DGI are an integral part of Saudi

Arabia’s foreign relations and national security apparatus. Id.

Among his other duties as Director of the DGI, Prince Turki was actively

involved in Saudi Arabia’s efforts to combat international terrorism generally and

the threat posed by Osama bin Laden and Al-Qaeda in particular. In so doing, he

shared information and cooperated closely with other intelligence agencies,

including the CIA. Id. ¶ 6 (A-2153); see also id. ¶ 10 (A-2154-55) (describing

Prince Turki’s involvement in joint committee, formed in 1997, with United States

to combat terrorism).

The declaration also establishes that, contrary to plaintiffs’ unsupported

allegations, Prince Turki’s trips to Afghanistan in 1998 were for the purpose of

conveying the official Saudi request that Osama bin Laden be extradited to Saudi

outrage I felt when my father, the late King Faisal, was killed in a terrorist attack.” Prince Turki Al-Faisal, Allied Against Terrorism, Wash. Post, Sept. 17, 2002, at A21 (A-2170-72).

10

Arabia for trial. Id. ¶ 11 (A-2155). After the Taliban leader, Mullah Omar, denied

the request for extradition, Prince Turki recommended that Saudi Arabia withdraw

its representative from Kabul and suspend diplomatic relations with the Taliban

regime, which Saudi Arabia did in September 1998. Id. ¶ 13 (A-2155).4 The

declaration establishes, moreover, that all of Prince Turki’s interactions with bin

Laden, Al-Qaeda, and the Taliban were in his official capacity as Director of the

DGI. Decl. ¶ 5 (A-2152-53). In addition, the declaration refutes plaintiffs’ naked

allegations that, during these meetings in Afghanistan, Prince Turki reached an

agreement with bin Laden, or otherwise supported Al-Qaeda. See id. ¶¶ 15-16

(A-2156-57).

In support of his declaration, Prince Turki submitted to the district court a

transcript of a television interview of Osama bin Laden by John Miller of ABC

News. Bin Laden told ABC News he had “heard of [Prince] Turki’s secret

mission” to arrest him. ABC News: Nightline, 2001 WL 21773072 (Dec. 10, 2001)

(A-2176). Bin Laden stated: “He returned empty-handed. He looked ashamed, as

if he had come at the request of the American government. It’s none of the

business of the Saudi regime to come and ask for handing over Osama bin Laden.”

Id.

4 Well before the current suits were filed, in February 2002, Prince Turki described most of the events detailed in his declaration in a speech to the Center for Contemporary Arab Studies at Georgetown University. That speech was attached as an exhibit to Prince Turki’s motion to dismiss. (A-2162-69).

11

This version of events was confirmed by the 9/11 Report, which stated that,

after the Kingdom of Saudi Arabia had disrupted an Al-Qaeda plot to attack U.S.

forces in 1998, then-CIA Director George Tenet asked for the assistance of Saudi

Arabia in capturing Osama bin Laden. 9/11 Report at 115. The 9/11 Report found

that, in response to Director Tenet’s request, Saudi officials promised “an all-out

secret effort to persuade the Taliban to expel Bin Ladin so that he could be sent to

the United States or to another country for trial.” Id. Prince Turki, as the Saudi

“intelligence chief,” was chosen as the “Kingdom’s emissary” for that effort. Id.

The 9/11 Report further documented that Prince Turki, “employing a mixture of

possible incentives and threats, … received a commitment [from the Taliban] that

Bin Ladin would be expelled, but Mullah Omar did not make good on this

promise.” Id.

Prince Turki’s declaration also makes clear that, contrary to plaintiffs’

allegations, at no time did Prince Turki or the DGI knowingly transfer funds or

“facilitate” the transfer of funds, either directly or indirectly, to bin Laden or Al-

Qaeda. Decl. ¶ 14 (A-2156). The declaration also establishes that Prince Turki did

not know Zouaydi, and had no known financial ties to him. Id. ¶ 17 (A-2157-58).

Finally, the declaration states that Prince Turki “own[ed] no property,

conduct[ed] no business, and h[eld] no bank accounts in the United States.” Id.

¶ 20 (A-2159). It also states that, with respect to non-official visits, he had made

12

only “occasional trips to the United States over the years for medical reasons or on

holiday.” Id.

Despite repeated opportunities to do so, plaintiffs have submitted no

evidence contradicting Prince Turki’s declaration.

C. Decisions of the District Courts

1. In the most advanced of these cases, the United States District Court

for the District of Columbia — prior to the consolidation of these cases by the

Judicial Panel on Multidistrict Litigation — held that the FSIA required the

dismissal of all claims against Prince Turki. See Burnett v. Al Baraka Inv. & Dev.

Corp., 292 F. Supp. 2d 9, 23 (D.D.C. 2003) (Robertson, J.) (A-1757-84).

The Burnett court first held that plaintiffs’ claims involved alleged conduct

that would have been taken in Prince Turki’s “official capacity” as Director of the

DGI, and thus that he was presumptively entitled to immunity under the FSIA. See

id. at 15. The court then concluded that the so-called noncommercial torts

exception to immunity in 28 U.S.C. § 1605(a)(5) was not applicable to the claims

against Prince Turki. The court reasoned that the legislative history of the FSIA

“‘counsels that the exception to immunity [in § 1605(a)(5)] should be narrowly

construed so as not to encompass the farthest reaches of the common law.’” Id. at

19 (quoting MacArthur Area Citizens Ass’n v. Republic of Peru, 809 F.2d 918, 921

(D.C. Cir. 1987)) (emphasis omitted). Applying that principle, the court held that

13

plaintiffs’ allegations did not come within the limited scope of § 1605(a)(5)

because “allegations that (i) Prince Turki … funded (ii) those who funded (iii)

those who carried out the September 11th attacks would stretch the causation

requirement of the noncommercial tort exception not only to ‘the farthest reaches

of the common law,’ but perhaps beyond, to terra incognita.” Id. at 20.

The Burnett court also explained that the conduct alleged against Prince

Turki fell within the discretionary-function exception, and therefore was outside

§ 1605(a)(5). Section 1605(a)(5) is inapplicable to “any claim based upon the

exercise or performance” of “a discretionary function regardless of whether the

discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). The court concluded that it was

“nearly self-evident” that acts allegedly taken by Prince Turki “as director of [the

DGI]” “to protect Saudi Arabia from terrorism” were “decisions grounded in

social, economic, and political policy.” Burnett, 292 F. Supp. 2d at 20-21 (internal

quotation marks omitted). Accordingly, § 1605(a)(5) was inapplicable to the

claims against Prince Turki. Id.

2. Burnett was subsequently transferred to, and consolidated with other

cases in, the United States District Court for the Southern District of New York.

The district court, reviewing the decision in Burnett “de novo,” In re Terrorist

Attacks I, 349 F. Supp. 2d at 780 n.2, agreed that the FSIA required the dismissal

of all official capacity claims against Prince Turki. The court also concluded that

14

the Federal Insurance plaintiffs had not made a prima facie case of personal

jurisdiction with respect to alleged personal capacity conduct.

At the outset, the district court noted that plaintiffs had set forth two primary

sets of allegations against Prince Turki: that Prince Turki brokered a deal with

Osama bin Laden whereby bin Laden would not be extradited from Afghanistan in

exchange for a pledge not to attack Saudi Arabia; and that he “facilitated money

transfers from wealthy Saudis to the Taliban and al Qaeda.” Id. at 786.

The district court first held that, although the FSIA is applicable by its terms

to “foreign states,” immunity under the FSIA was “available to … Prince Turki, as

the Director of Saudi Arabia’s [DGI], to the extent [his] alleged actions were

performed in [his] official capacit[y].” Id. at 788. The court based that conclusion

on the decisions of several federal courts of appeals and district courts that have

held that the immunity of a foreign state under the FSIA extends to individuals

acting in an official capacity, because a suit against individual officials in that

circumstance “is the practical equivalent of a suit against the sovereign directly.”

Id. (collecting cases; internal quotation marks omitted).

Turning to the FSIA’s exceptions to immunity, the court held that neither the

commercial activities exception, 28 U.S.C. § 1605(a)(2), nor the state sponsor of

terrorism exception, id. § 1605(a)(7), was applicable. 349 F. Supp. 2d at 792-94.

The former was not relevant, the court held, because “contributing to a foundation

15

is not within our ordinary understanding of trade and traffic or commerce,” id. at

793 (internal quotation marks omitted); the latter was not relevant because “[t]he

parties agree that the Kingdom of Saudi Arabia has not been designated a state

sponsor of terrorism,” id. at 794.

The district court also held that plaintiffs’ claims against Prince Turki did

not fit within the noncommercial torts exception to immunity. First, the court held

that plaintiffs failed to “plead[] facts to support an inference that [Prince Turki]

[was] sufficiently close to the terrorists’ illegal activities to satisfy” New York tort

standards. Id. at 800-01. The court held that “there must be some facts presented

to support the allegation that the defendant knew” the receiving organization was a

front for terrorists. Id. at 801. Having reviewed the complaints and weighed the

evidence presented, the court found plaintiffs’ allegations against Prince Turki on

that issue were conclusory, and therefore insufficient to bring plaintiffs’ claims

within § 1605(a)(5). Id.

Second, the court held that all of the allegations against Prince Turki — both

that he funded charities and that he brokered a deal with bin Laden — involved

“judgments based on considerations of public policy” and thus were expressly

excluded by § 1605(a)(5)(A). Id. at 801-02.

Because the Federal Insurance plaintiffs alleged that Prince Turki donated

money to charities in a personal capacity, the district court also addressed whether

16

it had personal jurisdiction over Prince Turki with respect to those allegations.

Rejecting plaintiffs’ bare allegations that Prince Turki intended that his alleged

donations would result in terrorist attacks in the United States, the court found that

plaintiffs had presented no “specific facts” showing “Prince Turki’s primary and

personal involvement in, or support of, international terrorism and al Qaeda,” and

thus that it lacked personal jurisdiction. Id. at 813.5

SUMMARY OF ARGUMENT

I. The district court correctly held that the FSIA applies to suits against

foreign officials for alleged acts taken in an official capacity. The district court’s

decision on this point is in accord with a majority of federal courts to consider the

issue. The broad consensus in support of that view reflects the common-sense

proposition that a suit against a foreign official acting in an official capacity is, in

all materials respects, a suit against a “foreign state” itself. Indeed, the immunity

afforded foreign states under the FSIA would be meaningless if plaintiffs could

subject the official acts of a foreign state to suit in United States courts simply by

naming individual officials of the foreign state rather than the foreign state itself.

5 Because the remaining plaintiffs stipulated that their allegations did not

differ from those of plaintiffs in In re Terrorist Attacks I, the district court subsequently dismissed those claims as well. See In re Terrorist Attacks II, slip op. at 3 (SPA-105) (dismissing remaining claims against Prince Turki and noting “the parties agree … that the allegations and evidence presented … do not materially differ from the allegations and evidence presented in the cases already dismissed”).

17

This case illustrates that concern. Prince Turki has been sued for alleged

acts taken as Director of the DGI that were purportedly carried out on behalf of the

Kingdom of Saudi Arabia in furtherance of the foreign and national security

policies of the Kingdom. Subjecting Prince Turki to suit in United States courts

for those acts is, in all practical respects, suing the Kingdom of Saudi Arabia itself,

as the district court properly held.

II. Because Prince Turki is thus presumptively entitled to immunity,

plaintiffs had the burden to establish that one of the exceptions under the FSIA

divested Prince Turki of that immunity. Plaintiffs failed to carry that burden.

The principal exception relied upon by plaintiffs with respect to Prince

Turki, the noncommercial torts exception set out in § 1605(a)(5), does not apply

for multiple reasons. First, because the crux of plaintiffs’ claims is that Prince

Turki provided material support to terrorists, those claims may be brought, if at all,

only under the state sponsor of terrorism exception in § 1605(a)(7), not the

noncommercial torts exception in § 1605(a)(5). Any other result would permit

plaintiffs to circumvent the limitation in § 1605(a)(7), including, most importantly,

the limitation that only states designated as “state sponsors of terrorism” can be

forced to defend against accusations that they harbored terrorists. Second, as the

district court correctly held, plaintiffs have failed to show that their novel and

attenuated theory of causation — under which actions that Prince Turki supposedly

18

took in Afghanistan in the 1990s “caused” the attacks of September 11 — fits

within § 1605(a)(5). Third, the alleged conduct taken by Prince Turki was

discretionary, grounded in the foreign and national security policies of the

Kingdom of Saudi Arabia, and therefore is outside the scope of § 1605(a)(5).

Finally, because Prince Turki’s alleged tortious conduct occurred entirely outside

the United States, § 1605(a)(5) is inapplicable.

III. The district court also properly held that it lacked personal jurisdiction

over Prince Turki with respect to acts taken in a personal capacity. Only the

Federal Insurance plaintiffs made such allegations, and those allegations are

baseless. Prince Turki never made any personal donations to the charities alleged

by the Federal Insurance plaintiffs, and plaintiffs have not responded — because

they cannot respond — to Prince Turki’s demand that they set forth a good faith

basis for those allegations. In any event, the district court correctly held that

plaintiffs had not pleaded a prima facie case of personal jurisdiction because no

specific facts suggested that Prince Turki knew the charities to which he allegedly

contributed were fronts for terrorism. Finally, in light of the conclusory and

unsubstantiated nature of plaintiffs’ allegations, the district court did not abuse its

discretion by refusing jurisdictional discovery.

19

STANDARD OF REVIEW

This Court reviews the district court’s findings of fact under the FSIA for

“clear error,” while it reviews the court’s legal conclusions “de novo.” Robinson v.

Government of Malaysia, 269 F.3d 133, 138 (2d Cir. 2001). A district court’s

decision to deny discovery under the FSIA is reviewed “for an abuse of [the

court’s] discretion.” First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d

172, 176 (2d Cir. 1998); see Grady v. Affiliated Cent., Inc., 130 F.3d 553, 561 (2d

Cir. 1997) (“The management of discovery lies within the sound discretion of the

district court, and the court’s rulings on discovery will not be overturned on appeal

absent an abuse of discretion.”).

It is well settled that “sovereign immunity under the FSIA is immunity from

suit, not just from liability.” Robinson, 269 F.3d at 141 (internal alterations and

quotation marks omitted). A corollary to that principle is that, in resolving a claim

of immunity under the FSIA on a motion to dismiss, courts must “look beyond the

pleadings to factual submissions, including affidavits, submitted to the court in

order to resolve a factual dispute as to whether” an exception to immunity applies.

Id. at 140-41. Thus, when the defendant presents a “prima facie case that it is a

foreign sovereign,” the plaintiff “has the burden of going forward with evidence

showing that, under exceptions to the FSIA, immunity should not be granted.”

20

Virtual Countries, Inc. v. Republic of South Africa, 300 F.3d 230, 241 (2d Cir.

2002) (emphasis and internal quotation marks omitted).

ARGUMENT

I. THE FSIA APPLIES TO INDIVIDUALS ACTING IN AN OFFICIAL CAPACITY

“The FSIA provides the ‘sole basis’ for obtaining jurisdiction over foreign

states and their instrumentalities in the United States.” Rafidain Bank, 150 F.3d at

176 (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,

434 (1989)). The FSIA prescribes “when and how parties can maintain a lawsuit

against a foreign state or its entities in the courts of the United States and … when

a foreign state is entitled to sovereign immunity.” H.R. Rep. No. 94-1487, at 6

(1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6604. A foreign state is “‘immune

from the jurisdiction of United States courts, unless a specified statutory exception

applies.’” Garb v. Republic of Poland, 440 F.3d 579, 582 (2d Cir. 2006) (quoting

Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993)) (internal alterations omitted);

see also 28 U.S.C. §§ 1604-1607 (setting out exceptions to immunity).

A. Properly construed, the FSIA shields foreign officials sued for acts

taken in their official governmental capacity. The Act provides that a “foreign

state shall be immune from the jurisdiction” of United States courts. 28 U.S.C.

§ 1604. A “foreign state,” in turn, is defined to include “a political subdivision of a

foreign state or an agency or instrumentality of a foreign state.” Id. § 1603(a).

21

Five federal courts of appeals — the D.C., the Fourth, Fifth, Sixth, and Ninth

Circuits — have squarely held that the FSIA applies to foreign officials acting in

an official capacity. See Velasco v. Government of Indonesia, 370 F.3d 392, 399

(4th Cir. 2004) (“[c]laims against the individual in his official capacity are the

practical equivalent of claims against the foreign state”); Keller v. Central Bank of

Nigeria, 277 F.3d 811, 815 (6th Cir. 2002) (“foreign sovereign immunity extends

to individuals acting in their official capacities”); Byrd v. Corporacion Forestal y

Industrial De Olancho S.A., 182 F.3d 380, 388 (5th Cir. 1999) (“the FSIA extends

to protect individuals acting within their official capacity”); El-Fadl v. Central

Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996) (“[a]n individual can qualify as

an ‘agency or instrumentality of a foreign state’”) (quoting 28 U.S.C. § 1603(b));

Chuidan v. Philippine Nat’l Bank, 912 F.2d 1095, 1103 (9th Cir. 1990) (“[w]e thus

join the majority of courts which have similarly concluded that [the FSIA] can

fairly be read to include individuals sued in their official capacity”). Numerous

district courts, including courts in this Circuit, have reached the same conclusion.6

6 See Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 184

F. Supp. 2d 277, 286-87 (S.D.N.Y. 2001) (“it has been generally recognized that individuals employed by a foreign state’s agencies or instrumentalities are deemed ‘foreign states’ [under the FSIA] when they are sued for actions undertaken within the scope of their official capacities”); Bryks v. Canadian Broad. Corp., 906 F. Supp. 204, 210 (S.D.N.Y. 1995); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1197 (S.D.N.Y. 1996); Kline v. Kaneko, 685 F. Supp. 386, 389 (S.D.N.Y. 1988); Rios v. Marshall, 530 F. Supp. 351, 371 (S.D.N.Y. 1981).

22

This broad consensus arises from the reality that the protections afforded by

the FSIA would be largely meaningless if foreign officials acting in an official

capacity were beyond the scope of the Act. Were foreign officials unprotected by

the FSIA, a plaintiff could simply alter the caption of a complaint against a foreign

state, name foreign officials of the state as defendants, and thereby subject the

sovereign acts of the state to suit in United States courts. As the Ninth Circuit has

explained, the view that “Congress … intended to allow unrestricted suits against

individual foreign officials acting in their official capacities” “would amount to

blanket abrogation of foreign sovereign immunity by allowing litigants to

accomplish indirectly what they are barred from doing directly.” Chuidian, 912

F.2d at 1102; see also id. (provisions of “sections 1605-07 [of the FSIA] would be

vitiated if litigants could avoid immunity simply by recasting the form of their

pleadings”).

This case convincingly illustrates that concern. Plaintiffs have

acknowledged that Prince Turki was Director of the DGI from 1977 until 2001.

And Prince Turki has averred — and plaintiffs have not challenged — that all of

his dealings with Al-Qaeda and the Taliban during that period were in his official

capacity in carrying out the foreign and national security policies of the Kingdom

of Saudi Arabia. See Decl. ¶ 5 (A-2152-53). Accordingly, allowing plaintiffs to

sue Prince Turki for actions taken in his official capacity would allow the very

23

result that the FSIA was intended to preclude — namely, subjecting foreign

sovereigns to liability in United States courts for official acts.

As is also explained by Princes Sultan, Naif, and Salman, see Prince Sultan

Br. 22-24, the conclusion that the protection afforded foreign states extends to

foreign officials is confirmed by the common law prior to the FSIA. Before the

adoption of the FSIA, it was well established that federal common law “extended

immunity to individual officials acting in their official capacity.” Chuidian, 912

F.2d at 1101. The Restatement (Second) of Foreign Relations Law § 66 (1965),

for example, provided that “[t]he immunity of a foreign state … extends to … any

… official … with respect to acts performed in his official capacity.” Congress, in

enacting the FSIA, evinced no desire to restructure the law of foreign immunity by

abrogating the common law on that point, and “[i]t would be illogical to conclude

that Congress would have enacted such a sweeping alteration of existing law

implicitly and without comment.” Chuidian, 912 F.2d at 1102; see also National

Archives & Records Admin. v. Favish, 541 U.S. 157, 169 (2004) (courts should

“assume Congress legislated against [a] background of law, scholarship, and

history when it enact[s]” a statute). Reading the FSIA as silent with respect to

foreign officials would therefore “defeat the purpose” of the FSIA to serve as “a

comprehensive codification of immunity and its exceptions.” Chuidian, 912 F.2d

at 1102; see also id. at 1101 (pre-FSIA common law extended protection to

24

individuals, and the legislative history contains “numerous statements that

Congress intended the Act to codify the existing common law principles”); H.R.

Rep. No 94-1487, at 7, 1976 U.S.C.C.A.N. at 6605 (noting the lack of a

“comprehensive provisions” addressing foreign immunity, and stating a desire to

“codify” immunity principles).

B. The contrary view of the Burnett plaintiffs — that the FSIA protects

foreign states but not foreign officials acting in an official capacity — is in error.

The Burnett plaintiffs rely (at 27-28) largely on the point that the FSIA does

not expressly identify “foreign officials” as a distinct subset of a “foreign state.”

But, as the district court recognized, a suit brought against a foreign official is a

suit against a “foreign state.” See 349 F. Supp. 2d at 788; see also Transaero, Inc.

v. La Fuerza Aerea Boliviana, 30 F.3d 148, 153 (D.C. Cir. 1994) (“armed forces

are as a rule are so closely bound up with the structure of the state that they must in

all cases be considered as the ‘foreign state’ itself”); Garb, 440 F.3d at 591-93

(following Transaero). The immunity of the Director of Saudi Arabia’s DGI is, in

other words, entirely derivative of the immunity of the Kingdom of Saudi Arabia

for purposes of the FSIA. As is explained elsewhere, agencies and

instrumentalities do not exhaust the categories of official actors that may be

considered part of a “foreign state.” See Prince Sultan Br. 24-26. Interpreting the

25

FSIA to protect foreign officials acting in an official capacity is thus fully

consistent with the text of the Act.7

In this respect, principles of domestic sovereign immunity are instructive.

The Eleventh Amendment to the United States Constitution speaks of “any suit …

commenced or prosecuted against one of the United States” and makes no mention

of state officers. Yet federal courts have long held that the Eleventh Amendment

generally applies to actions brought against individuals acting in their official

capacity. See Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“[i]t is … well

established that even though a State is not named a party to the action, the suit may

nonetheless be barred by the Eleventh Amendment … when … the state is the real,

substantial party in interest”) (internal quotation marks and alterations omitted).

As the Supreme Court has explained, “official-capacity suits generally represent

7 This analysis addresses plaintiffs’ reliance on Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004), cert. denied, 126 S. Ct. 2020 (2006). See Burnett Br. 28. In Tachiona, a panel of the Second Circuit expressed that it had “some doubt as to whether the FSIA was meant to supplant the ‘common law’ of head-of-state immunity,” in part because agencies and instrumentalities, which are defined in § 1603(b), “are defined in terms not usually used to describe natural persons.” 386 F.3d at 220-21. To begin with, the court made clear that its statements should not be taken as deciding the issue, as it “ha[d] no occasion to decide whether [defendants] were protected from suit by head-of-state immunity — whether under the terms of the FSIA” or otherwise. Id. at 221. Furthermore, the court did not consider the specific arguments made here regarding “foreign state” based on the history and purposes of the FSIA. In any event, as the Ninth Circuit has held, although the terms defining agency and instrumentality may “more readily connot[e] an organization or collective,” they “do not in their typical legal usage necessarily exclude individuals.” Chuidian, 912 F.2d at 1101; see Jungquist v. Sheik Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027 (D.C. Cir. 1997).

26

only another way of pleading an action against an entity of which an officer is an

agent.” Monell v. Department of Social Servs., 436 U.S. 658, 690 n.55 (1978).

Because such suits may “implicate the dignity of the State as a sovereign” no less

than a suit against the state itself, they may be barred by the Eleventh Amendment.

Kitchen v. Upshaw, 286 F.3d 179, 184 (4th Cir. 2002) (internal quotation marks

omitted).

That principle applies here. As the Fourth Circuit has explained, protection

for foreign officials under the FSIA “models federal common law relating to

derivative U.S. sovereign immunity.” Velasco, 370 F.3d at 399; see also id.

(“Claims against the individual in his official capacity are the practical equivalent

of claims against the foreign state.”); Chuidian, 912 F.2d at 1102 (drawing on

domestic immunity principles in construing the FSIA to protect against official

capacity suits). In other words, just as “an official-capacity suit” against an official

of a domestic sovereign “is, in all respects other than name, to be treated as a suit

against the [sovereign] entity,” Kentucky v. Graham, 473 U.S. 159, 166 (1985), so

too should the claims against Prince Turki for acts taken on behalf of Saudi Arabia

be treated as a suit against Saudi Arabia itself.8

8 Plaintiffs decline to rely on Enahoro v. Abukakar, 408 F.3d 877, 881-82

(7th Cir. 2005), cert. denied, 126 S. Ct. 1341 (2006), and for good reason. There, the court refused to find jurisdiction over a Nigerian general based on allegations that, plaintiffs claimed, fell within an FSIA exception to sovereign immunity. The court held that the general, as an individual, was not covered by the FSIA, and thus

27

II. PLAINTIFFS HAVE NOT CARRIED THEIR BURDEN OF SHOWING THAT AN EXCEPTION TO IMMUNITY APPLIES

Under the FSIA, “immunity remains the rule rather than the exception.”

MacArthur Area Citizens Ass’n, 809 F.2d at 919 (internal quotation marks

omitted). Because Prince Turki is presumptively entitled to immunity under the

FSIA for acts taken in his official capacity, plaintiffs “ha[ve] the burden of going

forward with evidence showing that, under exceptions set forth in the FSIA,

immunity should not be granted.” Robinson, 269 F.3d at 141 (internal quotation

marks omitted). Plaintiffs have failed to meet that burden.

Plaintiffs rely primarily on the FSIA’s noncommercial torts exception in

§ 1605(a)(5), which permits, with important exceptions, actions “in which money

damages are sought against a foreign state for personal injury or death … occurring

in the United States and caused by tortious act or omission of that foreign state or

that jurisdiction could not be founded on an exception to the FSIA. The court’s holding resulted in the dismissal of the suit, which was consistent with the court’s concern about the oddity of “[a] courtroom in Chicago” as the place for “a case involving seven Nigerian citizens suing an eighth Nigerian for acts committed in Nigeria.” Id. at 878. Without addressing the abundant precedents on this issue, see supra pp. 21-22, the court stated that the “issue [of individual immunity was] a long way from being settled.” Id. at 881. The court also overlooked the history and purposes of the FSIA; did not consider whether an official could qualify as a “foreign state” (as opposed to an agency or instrumentality); and did not discuss the analogy to domestic immunity principles.

28

any official or employee of that foreign state while acting within the scope of his

office or employment.” Section 1605(a)(5) is inapplicable here for four reasons.9

A. Plaintiffs’ Claims Must Be Brought, If At All, Under Section 1605(a)(7)

The gravamen of plaintiffs’ claims against Prince Turki is that he “provided

material support and resources to al Qaida,” FAC ¶ 446 (A-2010), both by entering

an agreement with Osama bin Laden and by “facilitat[ing] … money transfers in

support of the Taliban, al Qaeda, and international terrorism,” Burnett Br. 23

(internal quotation marks omitted).

As explained in more detail in the brief of the Kingdom of Saudi Arabia, see

KSA Br. Part I.B.1, the FSIA contains an exception to sovereign immunity for just

such allegations. Section 1605(a)(7) provides jurisdiction over claims in which

“money damages are sought” for “personal injury or death” arising out of the

“provision of material support or resources” to terrorists. 28 U.S.C. § 1605(a)(7).

Critically, however, that exception does not apply unless “the foreign state was …

designated as a state sponsor of terrorism … at the time the act occurred.” Id.

§ 1605(a)(7)(A). There is no dispute here that the Kingdom of Saudi Arabia has

not been designated as a state sponsor of terrorism. It is accordingly clear that the

9 For reasons set forth elsewhere, the commercial activities exception of the

FSIA, 28 U.S.C. § 1605(a)(2), is inapplicable to Prince Turki. See KSA Br. Part I.C.

29

“state sponsor of terrorism exception” does not establish jurisdiction against Prince

Turki for acts taken in an official capacity on behalf of Saudi Arabia.

It is equally clear, moreover, that plaintiffs’ effort to plead around that

hurdle, by recasting their “state sponsor of terrorism” charges as noncommercial

tort claims, is an impermissible effort to circumvent the limitations set forth in

§ 1605(a)(7). Those limitations — in particular, the requirement that a defendant

be designated a “state sponsor of terrorism” before being required to answer

charges that it supported terrorism — are an indispensable part of the “delicate

legislative compromise” that led to the enactment of § 1605(a)(7), Price v.

Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 89 (D.C. Cir. 2002), and

they serve to protect the Executive branch’s authority to designate which nations

are, and are not, state sponsors of terrorism. To allow plaintiffs to proceed against

the Kingdom and its officials on a “state sponsor of terrorism” theory in the

absence of such a designation would be to authorize a lawsuit that both Congress

and the Executive branch have determined should not be brought.

B. Plaintiffs’ Theories of Causation Do Not Fall Within the Scope of Section 1605(a)(5)

Plaintiffs’ claims against Prince Turki were also properly dismissed because

plaintiffs’ novel, attenuated, and uncorroborated theories of causation do not fit

within the scope of § 1605(a)(5).

30

1. As a threshold matter, it bears emphasis that Congress’s purpose in

enacting § 1605(a)(5) was narrow. The legislative history of the FSIA makes clear

that, in enacting § 1605(a)(5), Congress was concerned primarily with the narrow,

but recurring, problem of traffic accidents involving employees of foreign

embassies. See H.R. Rep. No. 94-1487, at 20, 1976 U.S.C.C.A.N. at 6619

(“[s]ection 1605(a)(5) is directed primarily at the problem of traffic accidents”); id.

at 21, 1976 U.S.C.C.A.N. at 6620 (“[t]he purpose of section 1605(a)(5) is to permit

the victim of a traffic accident or other noncommercial tort to maintain an action”).

As then-Judge Scalia explained, this exception was intended “for certain narrowly

defined public acts for which local adjudication was deemed imperative (e.g.,

traffic accidents caused by employees and officials of a foreign embassy).”

Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1520 (D.C.

Cir. 1984). The Supreme Court has made the same point, emphasizing that

Congress’s “primary purpose” in enacting § 1605(a)(5) was to treat foreign

sovereigns like other employers with respect to respondeat superior liability for

injuries, primarily arising from traffic accidents caused by employees of foreign

states. Amerada Hess, 488 U.S. at 439. In light of that purpose, § 1605(a)(5)

“‘should be narrowly construed so as not to encompass the farthest reaches of the

common law.’” Burnett, 292 F. Supp. 2d at 19 (quoting MacArthur Area Citizens

Ass’n, 809 F.2d at 921) (emphasis omitted).

31

Applying those principles, the Burnett court held that plaintiffs’ untrodden

and attenuated legal theories of causation would broaden the scope of § 1605(a)(5)

well beyond the narrow limits Congress intended. The court explained that

plaintiffs’ allegations, in essence, were that “(i) Prince Turki … funded (ii) those

who funded (iii) those who carried out the September 11 attacks.” Id. at 20. The

court held that the theories of causation underlying those allegations would “stretch

the causation requirement of the noncommercial tort exception not only to the

farthest reaches of the common law, but perhaps beyond, to terra incognita.” Id.

(internal quotation marks omitted).

Beyond that, as the district court here concluded, plaintiffs’ theory also fails

on the facts. See 349 F. Supp. 2d at 797-801. Under New York law, the two

theories under which plaintiffs proceeded, conspiracy and aiding and abetting, are

each variants of concerted action liability. For both, a plaintiff must show “(1) an

express or tacit agreement to participate in a common plan or design to commit a

tortious act, (2) the tortious conduct by each defendant, (3) the commission by one

of the defendants, in pursuance of the agreement, of an act that constitutes a tort.”

Pittman v. Grayson, 149 F.3d 111, 122 (2d Cir. 1998) (internal quotation marks

omitted); see also Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983)

(describing elements of aiding and abetting and conspiracy).

32

As the district court held, neither set of plaintiffs’ allegations against Prince

Turki meets these standards. Plaintiffs have alleged, first, that Prince Turki, three

years prior to the September 11 attacks, brokered a deal on behalf of Saudi Arabia

not to extradite Osama bin Laden in exchange for a pledge not to attack Saudi

Arabia, and, second, that, in his capacity as Director of the DGI, Prince Turki

facilitated the transfer of resources to Al-Qaeda.

The conduct described in the first set of allegations — apart from being fully

contradicted by Prince Turki’s declaration, as well as bin Laden’s public

statements and the 9/11 Report — cannot plausibly be said to have caused the

terrorist attacks of September 11. Plaintiffs have not alleged, for example, specific

facts showing that the supposed agreement with bin Laden was intended, or

constituted an agreement, to further the agenda of Al-Qaeda. Nor have plaintiffs

alleged any specific facts connecting that agreement to terrorist attacks that

occurred three years later. Nothing about an agreement that bin Laden would not

attack Saudi Arabia suggests that Prince Turki intended that the alleged agreement

would cause an attack on the United States. As the district court here recognized,

see 349 F. Supp. 2d at 800-01, broad and conclusory allegations on those points are

insufficient as a matter of law. See First Nationwide Bank v. Gelt Funding Corp.,

27 F.3d 763, 772 (2d Cir. 1994) (“courts do not accept conclusory allegations on

the legal effect of the events plaintiff has set out if these allegations do not

33

reasonably follow from his description of what happened”) (internal alterations and

quotation marks omitted).

With respect to the second set of allegations (regarding supposed funding of

Al-Qaeda), plaintiffs, as the district court correctly found, failed “to allege specific

facts showing that [Prince Turki] knew or should have known that the charities [he

allegedly] supported were actually fronts for al Qaeda.” 349 F. Supp. 2d at 800.

Furthermore, plaintiffs did not “plead[] facts to support an inference that [Prince

Turki] [was] sufficiently close to the terrorists’ illegal activities” to establish

causation. Id. Rather, plaintiffs presented “only conclusions” that Prince Turki

“knowingly provided assistance or encouragement” to Al-Qaeda. Id. at 801.

Allowing the case against Prince Turki to go forward on such “‘vague’” and

“‘conclusory’” allegations, the district court correctly held, would be “‘at odds

with the goal of the FSIA to enable a foreign government to obtain an early

dismissal when the substance of the claim against it does not support jurisdiction.’”

Id. (quoting Robinson, 269 F.3d at 146); see also Gelt Funding Corp., 27 F.3d at

772 (courts need not accept conclusory allegations).

2. Plaintiffs raise three basic objections to the district court’s holding on

this point. None of those objections is availing.

First, relying on Boim v. Quranic Literacy Institute, 291 F.3d 1000 (7th Cir.

2002), and Halberstam, plaintiffs assert that their allegations were sufficient under

34

the common law of “aiding and abetting” because they “alleged that [Prince] Turki

gave assistance to Osama bin Laden to carry out terrorist attacks on other

countries, specifically the United States, so that bin Laden would not attack Saudi

Arabia.” Burnett Br. 48; see also id. at 42-45.

Plaintiffs’ reliance on Boim and Halberstam is misplaced. Boim involved

claims against U.S.-based charities that allegedly provided direct financial support

to Hamas with the express goal of supporting terrorist activities by Hamas, which

had been designated by the United States as a terrorist organization. See 291 F.3d

at 1002. That circumstance is far removed from the allegations against Prince

Turki here, which are nothing more than that Prince Turki brokered an agreement

to avoid attacks against Saudi Arabia and facilitated the funding of charities (none

of which was designated as a terrorist organization), which in turn funded Al-

Qaeda, which in turn committed terrorist acts. What is more, the district court,

after “review[ing] the complaints in their entirety,” found no allegation from which

it could be credibly inferred that Prince Turki “knew the charities to which [he

allegedly] donated were fronts for al Qaeda.” 349 F. Supp. 2d at 801. Without

specific facts, any allegations by plaintiffs to that effect, especially in the face of

Prince Turki’s declaration, were nothing more than conclusions masquerading as

facts; they are insufficient to sustain plaintiffs’ burden under the FSIA, and nothing

in Boim is to the contrary. See Robinson, 269 F.3d at 146.

35

Similar analysis applies with respect to Halberstam. There, the D.C. Circuit

affirmed the decision of the trial court that a live-in companion of a burglar aided

and abetted the burglar based upon, among other things, the defendant’s role as a

“secretary and recordkeeper” for the burglar’s criminal activities. 705 F.2d at 486.

The court held that conduct satisfied aiding-and-abetting liability, which requires a

showing of, among other things, “knowing[] and substantial[] assist[ance] of the

principal violation.” Id. at 477. By contrast, plaintiffs here did not allege any

specific facts showing knowing and substantial assistance to Al-Qaeda; nor did

plaintiffs rebut Prince Turki’s sworn declaration denying plaintiffs’ version of

Prince Turki’s interactions with bin Laden and the Taliban and that he knew about

or assisted the “principal violation,” namely, the attacks of September 11. See

Decl. ¶ 4 (A-2152).10

Second, plaintiffs complain that the district court set too high a bar, insofar

as it required them to substantiate their theory of causation with evidence or

10 Plaintiffs suggest that Prince Turki must have known that the charities he

allegedly supported themselves supported terrorists because, as Director of DGI, he was purportedly warned that Saudi charities were funding terrorist groups. See Fed. Ins. Br. 16, 38. Those assertions, however, are immaterial, see Prince Sultan Br. 35-39, and are, in any event, contradicted in full by Prince Turki’s declaration. Moreover, plaintiffs’ view is inconsistent with the finding of the 9/11 Report that senior Saudi officials provided no assistance to Osama bin Laden or Al-Qaeda. See supra p. 8. Plaintiffs also omit the key fact that none of the charities allegedly supported by Prince Turki in an official capacity were designated by the United States as state sponsors of terrorism at the time of the alleged support to those charities.

36

specific facts. See Fed. Ins. Br. 33-35. But that is precisely what is required under

the FSIA. This Court has been quite clear that a plaintiff has a “burden of

production” to “come forward with sufficient evidence” when a foreign sovereign

presents evidence of an entitlement to immunity. Robinson, 269 F.3d at 141; see

also City of New York v. Permanent Mission of India to the United Nations, 446

F.3d 365, 369 (2d Cir. 2006) (“party seeking to establish jurisdiction bears the

burden of producing evidence establishing that a specific exception to immunity

applies”), petition for cert. filed, 75 U.S.L.W. 3061 (U.S. July 25, 2006) (No. 06-

134); Virtual Countries, 300 F.3d at 242 (same). Here, Prince Turki submitted a

sworn declaration denying, in detail, the allegations made against him. In the face

of that declaration, plaintiffs had an obligation to come forward with reliable

evidence substantiating their allegations. It is undisputed that they did not do so.

Nor is it the case that this Court’s requirement — that a plaintiff has a

burden to present evidence on whether an exception to immunity applies — is, as

some plaintiffs have argued, see Fed. Ins. Br. 34, unlawful. In fact, the Second

Circuit’s position tracks precisely Congress’s intent in adopting the FSIA. The

House Report explained that, “[o]nce the foreign state has produced such prima

facie evidence of immunity, the burden of going forward would shift to the

plaintiff to produce evidence establishing that the foreign state is not entitled to

immunity.” H.R. Rep. No. 94-1487, at 17, 1976 U.S.C.C.A.N. at 6616 (emphasis

37

added). The Second Circuit’s holding, moreover, is in accord with the holdings of

other courts of appeals. See, e.g., In re B-727 Aircraft Serial No. 21010, 272 F.3d

264, 271 (5th Cir. 2001) (after foreign sovereign makes out prima facie case of

immunity, “burden shifts to the party opposing immunity to present evidence that

one of the exceptions to immunity applies”) (internal quotation marks omitted);

Southway v. Central Bank of Nigeria, 328 F.3d 1267, 1274 (10th Cir. 2003)

(“Whether subject matter jurisdiction is raised under Rule 12(b)(1) or Rule 56, the

plaintiff’s burden [under the FSIA] remains the same — plaintiff must present

affidavits or other evidence sufficient to establish the court’s subject matter

jurisdiction by a preponderance of the evidence.”); Phoenix Consulting, Inc. v.

Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (upon motion to dismiss,

court “may not deny the motion to dismiss merely by assuming the truth of the

facts alleged by the plaintiffs”).

Third, plaintiffs claim that the district court erred in not allowing discovery

against Prince Turki in order to rectify their deficient allegations. See Fed. Ins. Br.

34-37. The court’s decision to deny jurisdictional discovery easily survives the

deferential abuse of discretion standard that applies here. See Rafidain Bank, 150

F.3d at 176.

The FSIA provides immunity not only from liability, but also from the

burdens of litigation, including discovery. See Robinson, 269 F.3d at 146; see also

38

Rafidain Bank, 150 F.3d at 176 (noting the “comity concerns implicated by

allowing jurisdictional discovery against a foreign sovereign”). Here, plaintiffs’

claims against Prince Turki were based on only a handful of conclusory and vague

allegations. Prince Turki denied those allegations in full in a sworn declaration

and asserted his entitlement to immunity as a foreign official of the Kingdom of

Saudi Arabia. In the face of that declaration — to which a court should attach

“great weight,” Leutwyler, 184 F. Supp. 2d at 287 — plaintiffs stood mute, relying

upon only their initial allegations. Faced with that one-sided evidentiary record,

the district court was comfortably within its discretion to deny discovery. See, e.g.,

Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 849 (5th Cir. 2000)

(because FSIA immunity protects against “the costs, in time and expense, and

other disruptions attendant to litigation,” “jurisdictional discovery is not permitted

as a matter of course”).

Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528 (5th Cir. 1992), is

instructive on this point. There, plaintiffs sought discovery to determine whether

alleged commercial conduct was attributable to the defendant and therefore vitiated

the defendant’s entitlement to sovereign immunity under the FSIA’s commercial

activities exception. See id. at 537. The court denied the request, reasoning that

“limited discovery” is permissible under the FSIA only when there are reliable

allegations of “specific facts that, if proved,” would demonstrate that an exception

39

to immunity applies. Id. at 537 n.17. That standard was not satisfied, the court

held, based on “speculative inferences of behind-the-scenes activity,” nor could

discovery be permitted to “supplant the pleader’s duty to state [specific] facts at the

outset of the case.” Id.

The same analysis applies here. Indeed, the case for refusing discovery here

is even stronger than in Arriba. Not only have plaintiffs sought to rely on generic

allegations that are themselves insufficient to warrant discovery under Arriba; but

Prince Turki has denied those allegations in a sworn declaration that has not been

challenged in any material respect. Moreover, as the district court noted, see 349

F. Supp. 2d at 802, plaintiffs have failed to describe any specific discovery that

could ameliorate the deficiencies in their allegations against Prince Turki. In these

circumstances, the district court did not abuse its discretion in denying discovery

based on the generic charge that Prince Turki knew his conduct was aiding

terrorists. See Robinson, 269 F.3d at 146 (to “sustain jurisdiction” in order to

authorize discovery based on “generic allegations” would “invite plaintiffs to

circumvent the jurisdictional hurdle of the FSIA by inserting vague and conclusory

allegations of tortious conduct in their complaints”); In re Republic of Philippines,

309 F.3d 1143, 1152 (9th Cir. 2002) (denying request to remand FSIA case “for

40

discovery on the sovereign immunity issue” because plaintiffs failed to “point[] to

any discovery that would help support their claim”).11

C. Prince Turki’s Alleged Conduct Is Discretionary and Therefore Falls Outside the Scope of Section 1605(a)(5)

Section 1605(a)(5) does not apply to “any claim based upon the exercise or

performance or the failure to exercise or perform a discretionary function

regardless of whether the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). It is

nearly “self-evident” that acts allegedly taken by Prince Turki “as director of

intelligence … to protect Saudi Arabia from terrorism” were “squarely covered” by

§ 1605(a)(5)(A) and therefore insufficient to establish jurisdiction under the FSIA.

Burnett, 292 F. Supp. 2d at 20-21.

The purpose of the discretionary-function exception — whether under the

FSIA or the Federal Torts Claim Act (“FTCA”), on which the FSIA exception is

modeled, see KSA Br. 34-35 — is to “prevent judicial ‘second-guessing’ of

11 See also El-Fadl, 75 F.3d at 671 (plaintiff was “not entitled to discovery

… in light of the evidence that [the foreign sovereign] proffered to the district court and the absence of any showing by [plaintiff] that [defendant] was not acting in his official capacity” because “discovery would frustrate the significance and benefit of entitlement to immunity from suit”) (internal quotation marks omitted); Evans v. Petroleos Mexicanos (PEMEX), No. 05-20434, 2006 WL 952265, at *2 (5th Cir. Apr. 18, 2006) (rejecting claim that a plaintiff was entitled to discovery because under “the broad scope of protections that sovereign immunity affords a defendant” a foreign sovereign is “immun[e] from the burdens of becoming involved in any part of the litigation process” and plaintiff was “not entitled to burden [the foreign sovereign] with the lengthy and costly process of discovery to build his case.”) (internal quotation marks omitted).

41

legislative and administrative decisions grounded in social, economic, and political

policy through the medium of an action in tort.” United States v. S.A. Empresa de

Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984).

That principle applies with considerable force here. Plaintiffs’ claims

against Prince Turki arise out of conduct Prince Turki is alleged to have taken to

further the foreign and national security policies of Saudi Arabia — viz., “that

[Prince] Turki had reached an agreement with Osama bin Laden and his followers

pursuant to which bin Laden agreed not to use his terrorist infrastructure to subvert

the royal family’s control of Saudi Arabia and [Prince] Turki agreed that the

Saudis would make no demands for the extradition of terrorist individuals, such as

Osama bin Laden.” Burnett Br. 48. But Prince Turki can no more be haled into

the courts of the United States to answer for such official actions than the head of

the CIA could properly be sued in a foreign tribunal for official acts. See United

States v. Gaubert, 499 U.S. 315, 323 (1991) (exception under the FTCA covers

“governmental actions and decisions based on considerations of public policy”)

(internal quotation marks omitted); Macharia v. United States, 334 F.3d 61, 66-67

(D.C. Cir. 2003) (allegations that United States government failed to warn and

negligently failed to secure U.S. Embassy in Nairobi, Kenya were encompassed by

discretionary-function exception of FTCA because of policy judgments and

balancing of interests inherent in security decisions); In re Agent Orange Prod.

42

Liab. Litig., 818 F.2d 194, 199 (2d Cir. 1987) (discretionary-function exception of

FTCA prevented judiciary from “pass[ing] judgment upon … military decisions

involving Agent Orange” and “second-guessing … discretionary legislative and

executive decisions … made concerning Agent Orange”) (internal quotation marks

omitted).

Nor is it the case that this principle gives way when the alleged acts are

particularly objectionable, as plaintiffs claim is the case here. See, e.g., Fed. Ins.

Br. 32 (“illegal and malevolent actions cannot be deemed discretionary, even if

grounded in policy judgment”). Nation-states routinely make policy judgments —

including judgments of dubious morality — because they are deemed to be in the

country’s national interest. In the late 1930s, Britain and France acquiesced in the

partition of Czechoslovakia in an effort to avoid war with Germany. See Winston

Churchill, The Second World War, Vol. 1: The Gathering Storm ch. 17 (Houghton

Mifflin Co. 1948). The United States sent agents to engage in the overthrow of

democratically elected governments in Iran and Guatemala. See Kermit Roosevelt,

Countercoup: The Struggle for Control of Iran (McGraw Hill 1979); Richard H.

Immerman, The CIA in Guatemala: The Foreign Policy of Intervention ch. 7

(Univ. of Tex. Press 1982) (describing CIA’s successful effort to overthrow Jacobo

Arbenz). The fact that such decisions are morally dubious in no way alters the fact

43

that they are based on policy judgments, and are therefore protected as

discretionary.12

Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989), and Letelier v.

Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980), do not suggest a different

result. As the Kingdom explains, see KSA Br. 36-39, it is far from clear that those

cases properly apply the discretionary-function exemption, which by its terms

protects discretionary decisions “regardless of whether the discretion be abused.”

28 U.S.C. § 1605(a)(5)(A). More fundamentally, the facts of Liu and Letelier are

far afield from plaintiffs’ allegations here against Prince Turki. Liu and Letelier

were cases in which foreign agents, acting on orders from foreign states or their

officials, carried out assassinations on United States soil. See Liu, 892 F.2d at

1422-23; Letelier, 488 F. Supp. at 665-66. Here, by contrast, plaintiffs have not

alleged, nor could they, that Prince Turki committed the September 11 attacks.

Nor have they alleged that Al-Qaeda was acting as an agent of Prince Turki, that

Prince Turki ordered those attacks, or even that he knew of the attacks. And the

allegations that plaintiffs do make — that Prince Turki facilitated aid to the Taliban

12 “Millions for defense, not one cent for tribute” was our young Republic’s

famous policy decision regarding the Barbary pirates. Other states have chosen differently throughout history. See, e.g., Herodotus, The Histories Bk. 6 (describing tribute paid by Greek states to the Persians to avoid attack); Thucydides, History of the Peloponnesian War Bk. 1 (describing tribute paid by Greek states to Athens for “protection” against Persian attack). No one can doubt that these are fundamental policy choices.

44

regime and Al-Qaeda and negotiated a treaty of sorts between Saudi Arabia and

bin Laden (all of which are patently false) — are not themselves terrorist acts or

crimes against humanity. Liu and Letelier, even if good law, are accordingly

beside the point. See Burnett, 292 F. Supp. 2d at 21 (finding Liu and Letelier

“factually distinguishable” because they “involved causal links significantly

shorter and more direct than those alleged” against Prince Turki).

D. Section 1605(a)(5) Is Inapplicable Because the Entire Tort Did Not Occur in the United States

Finally, § 1605(a)(5) does not divest Prince Turki of immunity because the

entire tort, as alleged by plaintiffs, did not occur within the United States.

As explained elsewhere, see KSA Br. 31-34, the D.C. Circuit has twice held

that § 1605(a)(5) applies only to tortious conduct in the United States. In

Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984), the D.C.

Circuit canvassed the legislative history of the FSIA, concluding that “Congress’

principal concern was with torts committed in this country.” Id. at 840. The court

reasoned that “[i]f Congress had meant to remove sovereign immunity for

governments acting on their own territory, with all of the potential for international

discord and for foreign government relations that that involves, it is hardly likely

that Congress would have ignored those topics and instead discussed automobile

accidents in this country.” Id. at 841. Based on this observation and an analysis of

the structure of the FSIA, the court concluded that “both the tort and the injury

45

must occur in the United States,” and thus that the foreign defendant in that case,

Iran, was “immune from tort suits here for actions taken by it on its own territory.”

Id. at 842. The court echoed that holding in Asociacion de Reclamantes,

explaining that “for the exception of § 1605(a)(5) to apply the tortious act or

omission must occur within the jurisdiction of the United States.” 735 F.2d at

1524 (internal quotation marks omitted).

In Amerada Hess, moreover, the Supreme Court contrasted the commercial

activity exception, which covers activity “‘outside the territory of the United

States,’” with the noncommercial tort exception, which is silent on conduct outside

the United States. 488 U.S. at 441. That distinction, the Court held, was

significant, and demonstrated that the noncommercial tort exception “covers only

torts occurring within the territorial jurisdiction of the United States.” Id. And this

Circuit has similarly explained that, although the noncommercial tort exception is

“cast in terms that may be read to require that only the injury rather than the

tortious act occur in the United States, the Supreme Court has held that this

exception ‘covers only torts occurring within the territorial jurisdiction of the

United States.’” Cabiri v. Government of Republic of Ghana, 165 F.3d 193, 200

n.3 (2d Cir. 1999) (quoting Amerada Hess, 488 U.S. at 441).

All of Prince Turki’s alleged tortious acts occurred overseas; none occurred

within the “territorial jurisdiction of the United States.” Amerada Hess, 488 U.S.

46

at 441; see, e.g., Ashton Compl. ¶ 254 (A-1604) (meeting in Pakistan); id. ¶ 257

(A-1604-05) (meetings in Pakistan and Afghanistan); id. ¶ 261 (A-1605) (meeting

in Afghanistan). For this reason as well, § 1605(a)(5) does not strip Prince Turki

of immunity under the FSIA.13

III. THE DISTRICT COURT PROPERLY HELD THAT IT LACKS PERSONAL JURISDICTION OVER PRINCE TURKI

With respect to the sole allegation against Prince Turki in his personal

capacity — that he supposedly made donations to charities that were used to

support Al-Qaeda — plaintiffs bear the burden of establishing personal

jurisdiction. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171

F.3d 779, 784 (2d Cir. 1999). The district court correctly found that plaintiffs had

failed to carry that burden.

13 Even if an exception to immunity applies, principles of personal

jurisdiction require dismissal of the claims against Prince Turki. See infra Part III. Plaintiffs concede that, under Second Circuit precedent, the Due Process Clause protects Prince Turki, even with respect to alleged official acts. See WTCP Br. 22 (citing Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1020 (2d Cir. 1991)); see also Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 313 (2d Cir. 1981) (under Second Circuit precedent a foreign state is a “person” under Due Process Clause). Plaintiffs urge the Court to overrule Shapiro, see id. 22-25, but plaintiffs did not sufficiently present this argument to the district court and it is thus forfeited. See Allianz Ins. Co. v. Lerner, 416 F.3d 109, 114 (2d Cir. 2005). In any event, “this court is bound by a decision of a prior panel unless and until its rationale is overruled … by the Supreme Court or this court en banc.” In re Sokolowski, 205 F.3d 532, 534-35 (2d Cir. 2000) (internal quotation marks and alterations omitted).

47

A. Plaintiffs Have Not Properly Alleged That Prince Turki Took Any Acts in His Personal Capacity

As a threshold matter, no plaintiff has made a bona fide allegation that

Prince Turki took any acts in his personal capacity. Although plaintiffs’ briefs

imply that each set of plaintiffs alleged that Prince Turki made donations in his

personal capacity, see, e.g., WTPC Br. 27, as the district court noted, only the

Federal Insurance amended complaint set forth any such allegation. See 349 F.

Supp. 2d at 813 (“consolidated Plaintiffs do not allege any acts taken by Prince

Turki in his personal capacity”).14 And the allegations of the Federal Insurance

plaintiffs, see FAC ¶¶ 451-452 (A-2011), can easily be set aside.

Like the other plaintiffs in these actions, the Federal Insurance plaintiffs

originally made no allegations against Prince Turki in his personal capacity. See

Federal Ins. Compl. ¶ 72, No. 03-6978 (S.D.N.Y. filed Sept. 10, 2003) (A-1727-

31) (including Prince Turki in a laundry list of defendants, with no mention of

personal capacity acts or donations). It was only after the Burnett court dismissed

the official capacity claims against Prince Turki in November 2003 that the

Federal Insurance plaintiffs amended their complaint to add identical boilerplate

allegations of personal donations with respect to different defendants whom the

14 Plaintiffs attempt to obfuscate this fact by stating that “each of the Four

Princes is alleged to have made personal donations,” see WTCP Br. 27, but, other than the cites to the Federal Insurance complaint, none of the cited paragraphs pleads facts indicating that Prince Turki made donations in a personal capacity.

48

Burnett court had dismissed under the FSIA, including Prince Turki. See, e.g.,

FAC ¶ 442 (A-2009) (“Prince Naif has made significant personal contributions to

Saudi-based charities … including IIRO, MWL, WAMY, BIF, the Saudi High

Commission, SJRC and al Haramain”); id. ¶ 451 (A-2011) (same allegations with

respect to Prince Turki); id. ¶ 467 (A-2014) (same allegations with respect to

Prince Abdullah).

Prior to that amendment, however, Prince Turki had made clear that he

never made or caused to be made donations to any of the charities named in the

Federal Insurance complaint. See Decl. ¶ 4 (A-2152) (denying Prince Turki “in

any way encouraged, funded, or provided any form of material or other assistance

– direct or indirect – to enable Osama bin Laden and his Al-Qaeda network of

terrorists to perpetrate these attacks”). In light of this denial, and because

plaintiffs’ allegations appear to have been added without any individual factual

investigation, counsel for Prince Turki sent a letter to the Federal Insurance

plaintiffs on July 15, 2004, invoking Federal Rule of Civil Procedure 11 and asking

them to withdraw their allegations or to provide a good faith basis for them. See

Letter from M. Kellogg, to E. Feldman (July 15, 2004) (A-2541-42). Plaintiffs

have yet to provide any response to that letter, much less have they set forth any

ground for alleging that Prince Turki, notwithstanding Prince Turki’s express and

49

unequivocal denial, made personal donations to the charities named in the

complaint.

Plaintiffs’ failure to substantiate this allegation is reason enough to dismiss

the claim. Although a plaintiff need ordinarily only allege a prima facie case of

personal jurisdiction in order to survive a motion to dismiss, “jurisdictional claims”

that are “clearly frivolous” should be dismissed prior to discovery. Massachusetts

Sch. of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026, 1041-42 (3d

Cir. 1997). In Massachusetts School of Law, the Third Circuit upheld the dismissal

of claims for lack of personal jurisdiction against several individuals who were

alleged, without any specific factual support, to have taken substantial acts in the

forum state of Pennsylvania. See id. The court reasoned that “unsupported

allegations” of conduct or effects in the forum state were insufficient. Id. The

claim for dismissal is even stronger here given that Prince Turki’s declaration

contradicts the Federal Insurance plaintiffs’ unsupported allegations, that the

allegations appear to have been added without any factual investigation, and that

plaintiffs have yet to set forth a good faith basis for making the allegations.

50

B. The District Court Properly Held That Plaintiffs’ Allegations Were Insufficient to Support Personal Jurisdiction

In any event, the record makes clear that at the times plaintiffs commenced

each of the relevant actions — the proper period for determining personal

jurisdiction15 — Prince Turki did not have sufficient contacts with New York (or

the United States as a whole) such that the exercise of personal jurisdiction over

him would not “offend traditional notions of fair play and substantial justice.”

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal

quotation marks and citation omitted).

1. For starters, there can be no serious argument that Prince Turki is

subject to general jurisdiction in New York. When these suits were commenced,

Prince Turki “own[ed] no property, conduct[ed] no business, and [held] no bank

accounts in the United States.” Decl. ¶ 20 (A-2159). His only non-official

contacts with the United States were an occasional trip “over the years for medical

reasons or on holiday.” Id. Those sporadic contacts were unrelated to plaintiffs’

claims and therefore cannot supply a basis for personal jurisdiction. See Kulko v.

Superior Ct., 436 U.S. 84, 93-94 (1978) (temporary visits to forum are insufficient

bases for personal jurisdiction over unrelated action).

15 See Klinghoffer v. S.N.C. Achille-Lauro Ed Altri-Gestione Motonave

Achille Laurao in Administrazione Straordinaria, 937 F.2d 44, 52 (2d Cir. 1991) (“personal jurisdiction depends on the defendant’s contacts with the forum state at the time the lawsuit was filed”).

51

Personal jurisdiction over Prince Turki could therefore be based only on his

alleged conduct abroad, and even then only if plaintiffs could establish that this

conduct had a “substantial connection” with the forum state, as demonstrated by

“an action of the defendant purposefully directed toward the forum State.” Asahi

Metal Indus. Co. v. Superior Ct., 480 U.S. 102, 112 (1987) (plurality op.)

(emphasis omitted).

Plaintiffs have not come close to satisfying their burden on this point. Even

if it were true that Prince Turki, at some unspecified point in time, made personal

donations to foreign charities that, in turn, made payments to Al-Qaeda, it would

not follow that Prince Turki “purposefully directed” any funds toward the United

States, much less toward New York. Id. Just as “[t]he placement of a product into

the stream of commerce, without more, is not an act of the defendant purposefully

directed toward the forum State,” id., so, too, an alleged contribution (in an

unspecified way, at an unspecified time) to a foreign charity that allegedly used the

contributions to fund global terrorism is not purposefully directed toward the

forum. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)

(“foreseeability” of injury in forum state “is not a sufficient benchmark for

exercising personal jurisdiction”) (internal quotation marks omitted).

Moreover, even if plaintiffs could show that Prince Turki’s alleged

donations outside the United States had “some causal relation to the alleged

52

injuries” that occurred inside the United States, “the test for in personam

jurisdiction is somewhat more demanding” and requires at least that any injury be a

“direct and foreseeable result of the conduct outside the territory.” Bersch v.

Drexel Firestone, Inc., 519 F.2d 974, 1000 (2d Cir. 1975) (Friendly, J.) (internal

quotation marks omitted). That is especially so here in light of the “[g]reat care

and reserve” courts should exercise “when extending … notions of personal

jurisdiction into the international field.” Asahi, 480 U.S. at 115 (plurality op.)

(internal quotation marks omitted); see also Leasco Data Processing Equip. Corp.

v. Maxwell, 468 F.2d 1326, 1341 (2d Cir. 1972) (Friendly, J.) (principles of

extraterritorial exercise of personal jurisdiction “must be applied with caution,

particularly in an international context”).

Plaintiffs do not, because they cannot, make that showing. As the district

court observed, plaintiffs did not present any “specific facts from which [it] could

infer Prince Turki’s primary and personal involvement in, or support of,

international terrorism and al Qaeda.” 349 F. Supp. 2d at 813. “Conclusory

allegations that [Prince Turki] donated money to charities” and that he knew those

charities were funneling money to Al-Qaeda simply “do not suffice.” Id. at 813-

14. The court’s refusal to credit such wholly conclusory allegations is in accord

with Second Circuit precedent. See Jazini v. Nissan Motor Co., 148 F.3d 181, 184

(2d Cir. 1998) (“conclusory statement” that was but “a restatement … of the legal

53

standard for determining agency” did not establish prima facie case of personal

jurisdiction); see also id. at 185 (rejecting “conclusory statements — without any

supporting facts” that defendant was controlled by foreign company because court

was “not bound to accept as a true a legal conclusion couched as a factual

allegation”).

The district court’s decision on this point is consistent, moreover, with the

Burnett court’s decision. In that case, the court dismissed nearly identical claims

against Prince Sultan.16 The court held that, notwithstanding allegations that

Prince Sultan “personally donated money to [certain charities], knowing that those

foundations funded terrorist organizations including Al Qaeda,” the complaint

“stops well short of alleging that Prince Sultan’s actions were ‘expressly aimed’ or

‘purposefully directed’ at the United States.” Burnett, 292 F. Supp. 2d at 22-23.

In the absence of such allegations, the court ruled that it lacked personal

jurisdiction. Id. The same result should apply here.

2. Plaintiffs rely upon five cases upholding personal jurisdiction over

claims brought against foreign terrorists. See WTCP Br. 37-43. But in each of

those cases, the defendants themselves were terrorists who had participated in or

16 Because Prince Turki was not alleged to have committed personal

capacity acts in Burnett, the court’s holding was limited to Prince Sultan. The allegations there, however, were the same as those here, and therefore the Burnett court’s reasoning applies equally here.

54

directly facilitated terrorist acts. See Mwani v. bin Laden, 417 F.3d 1, 13 (D.C.

Cir. 2005) (allegations against bin Laden and Al-Qaeda); Morris v. Khadr, 415 F.

Supp. 2d 1323, 1336 (D. Utah 2006) (allegations against Al-Qaeda member that

“actively participated in and helped plan Al Qaeda’s terrorist agenda”); Rein v.

Socialist People’s Libyan Arab Jamahiriya, 995 F. Supp. 325, 327-30 (E.D.N.Y.)

(allegations against government of Libya, which was a designated state sponsor of

terrorism, and “its agents”), aff’d in part, dismissed in part, 162 F.3d 748 (2d Cir.

1998); Pugh v. Socialist People’s Libyan Arab Jamahiriya, 290 F. Supp. 2d 54, 56

(D.D.C. 2003) (allegations in connection with explosion “an act of terrorism

committed by officials and agents of the government of Libya”); Daliberti v.

Republic of Iraq, 97 F. Supp. 2d 38, 40-41 (D.D.C. 2000) (allegations that the

government of Iraq itself tortured plaintiffs); see also In re Terrorist Attacks I, 349

F. Supp. 2d at 809 (noting that the terrorism cases cited by plaintiffs required

“personal or direct involvement” in terrorist acts).

Plaintiffs cannot overcome that dispositive difference with the conclusory

charge that Prince Turki conspired with or aided and abetted terrorists. “The cases

are unanimous that a bare allegation of a conspiracy between the defendant and a

person within the personal jurisdiction of the court is not enough.” Stauffacher v.

Bennett, 969 F.2d 455, 460 (7th Cir. 1992) (Posner, J.). “Otherwise plaintiffs

could drag defendants to remote forums for protracted proceedings even though

55

there were grave reasons for questioning whether the defendant was actually suable

in those forums.” Id.; see also, e.g., Lehigh Valley Indus., Inc. v. Birenbaum, 527

F.2d 87, 93-94 (2d Cir. 1975) (“[T]he bland assertion of conspiracy … is

insufficient to establish [personal] jurisdiction”); Bank Brussels Lambert, 171 F.3d

at 793 (“conclusory statements” about defendant’s role in conspiracy were

insufficient to establish jurisdiction); Jungquist, 115 F.3d at 1031 (“bald

speculation or a conclusory statement that individuals are co-conspirators is

insufficient to establish personal jurisdiction under a conspiracy theory”) (internal

alterations and quotation marks omitted).

In short, plaintiffs have not alleged that Prince Turki carried out the attacks

of September 11, or that the hijackers of September 11 were acting on behalf of

Prince Turki. Nor have plaintiffs alleged any specific facts suggesting that Prince

Turki conspired with or knowingly provided substantial assistance to those

terrorists. See In re Terrorist Attacks I, 349 F. Supp. 2d at 813 (holding that

plaintiffs set forth no “specific facts from which” the court “could infer Prince

Turki’s primary and personal involvement in, or support of, international terrorism

and al Qaeda”). The district court thus properly held that it could not exercise

personal jurisdiction over Prince Turki.

Plaintiffs also object to the district court’s striking of certain evidence that

they claim would have affected the court’s jurisdictional analysis. See WTCP Br.

56

13-14, 43-44. But the so-called evidence was a legal memorandum, submitted in

addition to plaintiffs’ oppositions to motions to dismiss, which the district court

found violated its rules regarding “page limitations.” (A-2504-06). In any event,

the memorandum is irrelevant. Plaintiffs point to no evidence in the memorandum

pertinent to Prince Turki, and do not explain how it would have altered the court’s

jurisdiction analysis. Prince Turki, in fact, is mentioned only twice in the

memorandum — in laundry lists in footnotes not relevant to the personal

jurisdiction issues here.17 Moreover, the memorandum was submitted to the

district court by the Burnett and Ashton plaintiffs, neither of which made any

allegations against Prince Turki in a personal capacity.

Finally, the district court did not abuse its discretion in denying

jurisdictional discovery. See Fed. Ins. Br. 34; Ashton Br. 60-62. For the reasons

stated above, plaintiffs failed to make a prima facie case of personal jurisdiction.

In such circumstances, it is settled law that plaintiffs are not entitled to discovery in

order to make their case. See Nissan Motor Co., 148 F.3d at 185-86 (plaintiffs

must allege facts establishing prima facie showing of personal jurisdiction before

getting jurisdictional discovery); Central States, S.E. & S.W. Areas Pension Fund

v. Reimer Express World Corp., 230 F.3d 934, 946 (7th Cir. 2000) (“plaintiff must

17 See Pls.’ Mem. of Law in Supp. of Their Prima Facie Showing of

Personal Jurisdiction and In Opp’n to Defs.’ Challenges to Personal Jurisdiction 1 n.1, 24 n.44 (filed May 14, 2004).

57

establish a colorable or prima facie showing of personal jurisdiction before

discovery should be permitted”); see also Burnett, 292 F. Supp. 2d at 16 (plaintiffs

did not make sufficient allegations against Prince Sultan to warrant jurisdictional

discovery). At the least, the district court cannot be said to have abused its

discretion by denying jurisdictional discovery in such circumstances.

CONCLUSION

For the foregoing reasons, this Court should affirm the district court’s

dismissal of all claims against Prince Turki.

Respectfully submitted, Michael K. Kellogg Mark C. Hansen Colin S. Stretch Kelly P. Dunbar Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. 1615 M Street, N.W. Washington, D.C. 20036 (202) 326-7900 Attorneys for Defendant-Appellee His Royal Highness Prince Turki

January 5, 2007 Al-Faisal Bin Abdulaziz Al-Saud

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitations of Fed. R. App.

P. 32(a)(7)(B)(ii) because it contains 13,913 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared in a proportionally spaced typeface using Microsoft Office Word

2003 in 14 point, Times New Roman.

January 5, 2007 Michael K. Kellogg

ANTI-VIRUS CERTIFICATION FORM Pursuant to Second Circuit Local Rule 32(a)(1)(E)

CASE NAME: In Re: Terrorist Attacks on September 11, 2001 DOCKET NUMBERS: 06-0319-cv(L); 06-0321-cv-(CON); 06-0348-cv(CON); 06-0397-cv(CON); 06-0398-cv(CON); 06-0436-cv(CON); 06-0442-cv(CON); 06-0453-cv(CON); 06-0458-cv(CON); 06-0461-cv(CON); 06-0473-cv(CON); 06-0477-cv(CON); 06-0487-cv(CON); 06-0657-cv(CON); 06-0674-cv(CON); 06-0693-cv(CON); 06-0700-cv(CON); 06-0702-cv(CON) I, Cristina E. Stout, certify that I have scanned for viruses the PDF version of

the

________ Appellant’s Brief __XX___ Appellee’s Brief ________ Reply Brief ________ Amicus Brief that was submitted in this case as an email attachment to <briefs@ca2.uscourts.gov> and that no viruses were detected. Please print the name and the version of the anti-virus detector that you used:

Symantec AntiVirus version 10.0 was used.

________________________________ Cristina E. Stout Date: January 5, 2007

STATE OF NEW YORK COUNTY OF NEW YORK

) ) )

ss.:

AFFIDAVIT OF SERVICE BY OVERNIGHT EXPRESS MAIL

I, , being duly sworn, depose and say that deponent is not a party to the action, is over 18 years of age and resides at the address shown above or at

On deponent served the within: Brief of Defendant -Appellee His Royal Highness Prince Turki Al-Faisal Bin Abdulaziz Al-Saud

upon:

SEE ATTACHED SERVICE LIST the address(es) designated by said attorney(s) for that purpose by depositing 2 true copy(ies) of same, enclosed in a postpaid properly addressed wrapper in a Post Office Official Overnight Express Mail Depository, under the exclusive custody and care of the United States Postal Service, within the State of New York. Attorneys for Appellants and for Co-Appellees were served by electronic service via email. Sworn to before me on

Mariana Braylovskaya Notary Public State of New York

No. 01BR6004935 Qualified in Richmond County

Commission Expires March 30, 2010

Job # 205744

APPELLANTS’ COUNSEL

SERVICE LIST

In re: Terrorist Attack on September 11, 2001 United States Court of Appeals for the Second Circuit

Plaintiffs’ Counsel Underlying Case Name

COZEN O’CONNOR 1900 Market Street Philadelphia, PA 19103 Tel: (215) 665-2000 Fax: (215) 665-2013 Stephen A. Cozen, Esquire

Elliott R. Feldman, Esquire

Sean P. Carter, Esquire

MDL1570@cozen.com

Federal Insurance Co., et al. v. Al Qaida, et al. (03 CV 6978) (RCC)

Vigilant Insurance Co. et al. v. The Kingdom of Saudi Arabia, et al. (03CV8591) (RCC)

Pacific Employers Insurance Co., et al. v. The Kingdom of Saudi Arabia, et al. (04CV7216) (RCC)

DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington DC 20006 Tel: (202) 420-2200 Fax: (202)) 420-2201 Kenneth L. Adams, Esquire AdamsK@dicksteinshapiro.com

Chris Leonardo, Esquire leonardoc@dicksteinshapiro.com

sept11pleadings@dsmo.com

Cantor Fitzgerald & Co., et al. v. Akida Bank Private Ltd., et al. (04-CV-7065)

FERBER CHAN ESSNER & COLLER LLP

530 Fifth Avenue New York, NY 10036-5101 Tel: (212) 944-2200 Fax: (212) 944-7630 Robert M. Kaplan, Esquire rkaplan@ferberchan.com

Continental Casualty Company et al. v. Al Qaeda Islamic Army, et al. (04CV5970) (RCC)

HANLY CONROY BIERSTEIN SHERIDAN FISHER & HAYES LLP

112 Madison Avenue, 7th Floor New York, NY 10016-7416 Tel: (212) 784-6400 Fax: (212) 784-6420 Paul Hanly, Jr., Esquire phanly@hanlyconroy.com

Jayne Conroy, Esquire jconroy@hanlyconroy.com

Andrea Bierstein, Esquire abierstein@hanlyconroy.com

Thomas E. Burnett, Sr., et al. v. Al Baraka Investment and Development Corp., et al., (03CV9849) (RCC), (03CV5738) (RCC)

World Trade Center Properties LLC, et al. v. Al Baraka Invest. and Develop. Corp., et al. (04CV7280) (RCC)

Euro Brokers Inc., et al. v.. Al Baraka Investment and Development Corporation, et al. (04CV7279) (04 CV 07279) (RCC)

KREINDLER & KREINDLER LLP 100 Park Avenue New York, NY 10017 Tel: (212) 687-8181 Fax: (212) 972-9432 James P. Kreindler, Esquire jkreindler@kreindler.com

Marc S. Moller, Esquire mmoller@kreindler.com

Steven R. Pounian, Esquire spounian@kreindler.com

Justin T. Green, Esquire jgreen@kreindler.com

Andrew J. Maloney, III, Esquire amaloney@kreindler.com

Ashton, et al. v. Al Qaeda, et al., 02-CV-6977 (RCC)

LAW OFFICES OF JERRY S. GOLDMAN AND ASSOCIATES, P.C.

Two Penn Center Plaza, Suite 1411 1500 JFK Boulevard Philadelphia, PA 19102 Tel: (215) 569-4500 Fax: (215) 569-8899 Jerry S. Goldman, Esquire jgoldman@goldmanlawyers.com

Frederick J. Salek, Esquire Fred.Salek@verizon.net

Estate of John P. O’Neill, Sr., et al v. Kingdom of Saudi Arabia, et al. 04 CV 1922 (RCC)

Estate of John P. O’Neill, Sr., et al. v. Al Baraka Investment and Development Corporation, et al. 04 CV 1923 (RCC)

Estate of John Patrick O’Neill, Sr., et al. v. The Republic of Iraq, et al. 04 CV 1076 (RCC)

LAW OFFICES OF JOSHUA M. AMBUSH, LLC

600 Reistertown Road Suite 200 A Baltimore, MD 21208 Tel: (410) 484-2070 Fax: (410) 484-9330 Joshua M. Ambush, Esquire joshua@ambushlaw.com

Helen Louise Hunter, Esquire hlsh@aol.com

Estate of John P. O’Neill, Sr., et al. v. Kingdom of Saudi Arabia, et al. 04 CV 1922 (RCC)

Estate of John P. O’Neill, Sr., et al. v. Al Baraka Investment and Development Corporation, et al. 04 CV 1923 (RCC)

Estate of John Patrick O’Neill, Sr., et al. v. The Republic of Iraq, et al. 04 CV 1076 (RCC)

MOTLEY RICE LLC 28 Bridgeside Boulevard P.O. Box 1792 Mount Pleasant, SC 29465 Tel: (843) 216-9000 Fax: (843) 216-9450 Ronald L. Motley, Esquire

Jodi Westbrook Flowers, Esquire

Donald A. Migliori, Esquire

Michael E. Elsner, Esquire

Robert T. Haefele, Esquire

Justin Kaplan, Esquire

John M. Eubanks, Esquire

MDL1570@motleyrice.com

Thomas Burnett, Sr. et al. v. Al Baraka Investment and Development Corp., et al. (03CV9849) (RCC), (03CV5738) (RCC)

World Trade Center Properties LLC, et al. v. Al Baraka Investment and Development Corporation, et al. (04CV7280) (RCC)

Euro Brokers Inc., et al. v. Al Baraka Investment and Development Corporation, et al. (04 CV 07279) (RCC)

BROWN GAVALAS & FROMM LLP 355 Lexington Avenue New York, New York 10017 (212) 983-8500 Frank J. Rubino, Esquire fjr@browngavalas.com

New York Marine and General Insurance

Company v. Al Qaida, et al. (04-CV-6105) (RCC)

APPELLEES’ COUNSEL

SERVICE LIST

In re: Terrorist Attack on September 11, 2001 United States Court of Appeals for the Second Circuit

Defendants’ Counsel

BAKER BOTTS LLP The Warner 1299 Pennsylvania Avenue, N.W. Washington, DC 20004-2400 Tel: (202) 639-7700 Fax: (202) 639-7890 Counsel for HRH Prince Sultan Bin Abdulaziz Al-Saud, HRH Prince Salman Bin Abdulaziz Al-Saud, HRH Prince Naif bin Abdulaziz Al-Saud Casey Cooper, Esquire casey.cooper@bakerbotts.com William H. Jeffress, Jr., Esquire william.jeffress@bakerbotts.com Jamie Kilberg, Esquire Jamie.kilberg@bakerbotts.com Sara Kropf, Esquire sara.kropf@bakerbotts.com MDL1570@bakerbotts.com

ROBBINS, RUSSELL, ENGLERT, ORSECK & UNTEREINER LLP 1801 K Street, NW, Suite 411 Washington, DC 20006 Tel: (202) 775-4500 Fax: (202) 775-4510 Counsel for Saudi High Commission Lawrence S. Robbins, Esquire lrobbins@robbinsrussell.com Roy T. Englert, Jr., Esquire renglert@robbinsrussell.com Alison Barnes, Esquire abarnes@robbinsrussell.com WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, DC 20006 Tel: (202) 663-6000 Fax: (202) 663-6363 Counsel for HRH Prince Mohamed Al Faisal Al Saud Louis R. Cohen, Esquire louis.cohen@wilmerhale.com Tracey Allen, Esquire tracey.allen@wilmerhale.com Shirley Woodward, Esquire Shirley.woodward@wilmerhale.com

WILMER CUTLER PICKERING HALE AND DORR LLP 399 Park Avenue New York, NY 10022 Tel: (212) 230-8800 Fax: (221) 230-8888 Counsel for HRH Prince Mohamed Al Faisal Al Saud David Bowker, Esquire david.bowker@wilmerhale.com Douglas Curtis, Esquire Douglas.Curtis@wilmerhale.com